Broadcasters Urge Court To Uphold Contempt Finding Against FilmOn
*by Wendy Davis**
**MediaPost.com**
**
**March 9, 2015 3:11 PM*
http://www.mediapost.com/publications/article/245232/broadcasters-urge-court-to-uphold-contempt-finding.html
TV broadcasters are urging a federal appellate panel to uphold a
contempt finding against online video provider FilmOn, which allegedly
violated a court by streaming TV programs to consumers.
“This is a simple case of civil contempt,” the broadcasters argue in
papers filed on Friday with the 2nd Circuit Court of Appeals. “FilmOn
does not dispute that it engaged in precisely the infringing activity
that the 2012 injunction prohibits: streaming plaintiffs’ programming
over the Internet without authorization.”
The broadcasters' papers come in response to FilmOn's appeal of U.S.
District Court Judge Naomi Reice Buchwald's July order holding the
company and its founder, Alki David, in contempt, and ordering them to
pay around $150,000.
Buchwald found FilmOn in contempt for continuing to operate its
streaming service after the U.S. Supreme Court ruled that a similar
product by the now-defunct Aereo infringed copyright. Buchwald said that
FilmOn's streams violated a 2012 injunction that she entered against an
earlier incarnation of the company.
The prior matter also stemmed from allegations that FilmOn infringed
copyright by streaming programs online. But when that case went through
the courts, FilmOn hadn't yet started using the multiple-antenna
technology at the center of the lawsuits involving Aereo.
That more recent technology drew on individual mini-antennas to capture
programs and stream them to users on an antenna-to-user basis. Unlike
FilmOn's original system, the multiple-antenna technology was considered
legal in New York, Vermont and Connecticut until last June, on the
theory that each stream was a “private” performance.
But that theory was rejected last summer by the Supreme Court, which
ruled that Aereo's transmissions were public performances regardless of
the company's back-end technology. The Supreme Court said in its ruling
that Aereo resembled a cable system, and therefore couldn't transmit
programs without a license.
Aereo suspended operations three days after that decision, but FilmOn
didn't stop using its multiple-antenna system to stream television
programs until around July 8 -- nine days after Aereo did so. In the
interim, FilmOn issued a press release touting a new streaming
technology that it called the “teleporter.”
Several weeks later, Buchwald found FilmOn and David in contempt for
violating the 2012 injunction, which prohibits FilmOn from infringing
broadcasters' copyrights “by any means.”
She imposed sanctions of $90,000 to $100,000 for every day that FilmOn
streamed programs after Aereo ceased doing so, and also ordered the
company to pay attorneys for the TV networks around $56,000.
FilmOn is appealing that ruling on the grounds that it believed in “good
faith” that the 2012 injunction didn't clearly prohibit it from using
either the multiple-antenna technology, or the even newer “teleporter”
technology.
The company also argues that it honestly thought it was entitled to a
cable license as a result of the Supreme Court ruling. FilmOn applied
for a cable license last summer, and says in appellate papers that it
wasn't in contempt because it was entitled to a compulsory license.
The broadcasters are asking the 2nd Circuit to reject those arguments.
“Acting in 'good faith' ...is no excuse for contemptuous conduct,” they
argue in an appellate brief. “If FilmOn truly had doubt about what the
2012 Injunction prohibits, it should have promptly sought clarification
or modification of the injunction, rather than gamble that plaintiffs
would not discover or object to FilmOn’s continuation and expansion of
its infringing service.”
Broadcasters also argue that FilmOn was never entitled to a cable
license, noting that the U.S. Copyright Office refused to process
FilmOn's application for a license.
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Associate Professor Fax (713) 743-3927
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University of Houston
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