A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on Tuesday in the so-called “Aereokiller” litigation. The case tests whether services that allow subscribers to stream broadcast television on their computers and mobile devices infringe the exclusive right of copyright owners to publicly perform their copyrighted works. Specifically, the Ninth Circuit will decide whether to uphold a December 2012 district court decision granting a preliminary injunction sought by NBC, ABC, CBS, Fox, and others to stop FilmOn X LLC (formerly known as Aereokiller) from re-transmitting broadcast television to its subscribers without a license.
The key legal issue in the case is whether FilmOn’s re-transmission of broadcast TV programming constitutes a public performance or a private one. Copyright owners have the exclusive right to publicly perform their copyrighted works, but cannot stop the private performance of their works. At oral argument, counsel for FilmOn argued that the company provides only private performances, as it re-transmits broadcast TV programming to each of its subscribers via individual antennas and DVRs. As one of the judges on the Ninth Circuit panel observed, FilmOn appears to have chosen the individualized antenna and DVR system for the specific purpose of attempting to circumvent the prohibition on publicly performing copyrighted works without a license.
The Ninth Circuit’s widely anticipated decision will follow the Second Circuit’s April 2013 opinion that declined to enjoin a virtually identical service — provided by FilmOn’s competitor Aereo, Inc. — from re-transmitting broadcast television to its subscribers via individualized antennas on the grounds that Aereo’s services constituted only private performances of copyrighted works.
Given the high profile nature of the Aereo and FilmOn cases, and the importance of the legal issue at stake, the Supreme Court may well take up one or both of the cases in the future.
In the interim, however, it appears that the broadcast networks will seek additional venues in which to press their arguments that the services provided by Aereo and FilmOn constitute public performances that infringe their copyrights. In May, Fox, NBC, ABC, and others filed a complaint against FilmOn in Washington, D.C. for injunctive relief and damages for copyright infringement. In July, Hearst Stations filed a similar complaint against Aereo in the District of Massachusetts.
For their part, Aereo and FilmOn both appear determined to expand into new markets. News reports in July indicated that Aereo would soon expand into 12 new markets. Following Tuesday’s oral argument, FilmOn founder Alki David was reported to have said that FilmOn would be expanding to 18 new markets in the next month.