Streaming video company FilmOn lost a major court battle late last week. Since that event, though, reactions and comments havent really focused on FilmOn, a company that has gone through multiple iterations and legal setbacks. Rather, the focus has been on what it means for Aereo—which, so far, is the only TV-over-Internet company that seems like it has a chance of pushing through legal attacks brought by broadcasters. Aereos business involves setting up vast arrays of tiny antennas, which capture over-the-air television and send it to its users over the Internet. By giving each customer their own antenna, Aereo makes clear that the capturing and saving of the television content is done at the direction of its users. Aereos business model has been ruled legal by a federal judge and the US Court of Appeals for the 2nd Circuit. Aereos success spawned FilmOn, an oddball competitor that has now fumbled seriously in court. The broadcasters that have sued Aereo around the country are already trying to make hay out of the FilmOn decision, filing papers in their Boston lawsuit to make sure the judge is aware of FilmOns loss. FilmOn: two misfires Theres no love lost between Aereo and its johnny-come-lately competitor. Earlier this year, FilmOn launched a new streaming service under the name barrydriller, a play on the name of Aereo investor Barry Diller. After a court injunction convinced it to stop using that name, FilmOn tried to call itself Aereokiller, and used trade names like Aero and Aero.tv. Aereo promptly shut those down with a March trademark lawsuit, arguing that FilmOn and its president Alki David were deliberately trying to confuse consumers. FilmOn agreed to a settlement under which it stopped using the name. This isnt the first time FilmOn has stumbled in trying to build a TV-over-Internet business. In 2010, it jumped into the unlicensed streaming business with no warning, at the same time that another online video service, ivi TV, was preparing to launch a long-planned defense of the copyright attack it knew would be on the way from television networks. ivi TV ultimately sent out press releases detailing how its plan differed from FilmOn, and even denouncing FilmOns sudden streaming of all kinds of channels as an obvious violation of copyright. FilmOn was slapped with an injunction in that case. While ivi TV managed to get its case separated from FilmOn, it too succumbed to the networks litigation. FilmOns lawyers have said it will appeal its most recent loss, and it is already appealing a separate loss in a California federal court. I think Judge Collyer didn’t do sufficient analysis,” the companys lawyer told Bloomberg News. “I’m surprised she ruled before even having a hearing.” Whereas Aereo has won two key court victories, FilmOn keeps losing. Its most recent loss has observers on all sides wondering what it means for Aereo. The consensus is: nothing good. Bad news for Aereo, any way you look at it The Copyright Alliance, a trade group funded by many content companies, including those litigating against FilmOn and Aereo, celebrated the victory in a weekend blog post. The post quotes the tough language Judge Rosemary Collyer used against FilmOn, but the Alliance notes that the company operates in the same vein as Aereo. This... increases the probability that FilmOn X, Aereo, and broadcasters will ultimately appear before the Supreme Court, writes the Alliance. Add to that the continuing harm that the Second Circuit’s Aereo holding is causing to broadcast television, and it is becoming more vital that the Supreme Court steps in to correct that court’s flawed interpretation. Coming from a very different point of view, Electronic Frontier Foundation lawyer Mitch Stoltz wrote a reaction piece as well. He complains that TV broadcasters want control of the entire TV-viewing experience from camera to eyeball and cant stand the thought of technology companies enhancing the user experience. Collyers order barely considered the publics rights, making the alarming statement that the public interest can only be served by upholding copyright protections. That ignores the balance needed between the rights of authors and the rights of the public, writes Stoltz. For its part, Aereo told The Verge that its business as usual, and wouldnt comment on the FilmOn case. But copyright law professor Jane Ginsburg told the publication that the nationwide reach of the FilmOn ruling is, indeed, bad news for Aereo. Aereos win in the 2nd Circuit remains the only appellate-level decision to consider the issue. It doesnt bode well for Aereo that the next case to be considered is FilmOns case, not its own. A road to the Supreme Court There are now four appeals courts that may weigh in on the legality of TV-over-Internet. The Aereo decision has come in the 2nd Circuit, FilmOn has an appeal pending in the 9th Circuit and has pledged to appeal the Washington DC case as well, and Aereo was recently sued in Boston, which is in the 1st Circuit. With the legal cacophony, its hard to imagine that the case wont go to the Supreme Court at some point in the future. But as Jeff Roberts at GigaOm points out, thats not likely to happen until 2015. Thats because late 2014 is the earliest date by which were likely to see a circuit split. And time, as Roberts notes, is on Aereos side. Widespread use and acceptance of a new technology can make a difference in how judges perceive a case. By the time the famous Betamax case was decided by the US Supreme Court in 1984, eight million VCRs were in use in the US, and five million more were expected to be sold over the course of the year
Posted on: Sat, 15 Mar 2014 18:42:17 +0000
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