FilmOn X, Broadcasters Square Off in Ninth Circuit

TV networks took aim at FilmOn X Aug 4 in oral argument before the Ninth Circuit Court of Appeals, with much of the argument focused on whether the Internet is a communications channel under Congress' definition of a cable system eligible for a compulsory license under the 1976 Copyright Act. The argument was in front of the three-judge panel of Diarmuid O'Scannlain, Consuelo Callahan, and Johnnie Rawlinson. A compulsory license would allow FilmOn X to deliver TV station programming from the major networks at a government-set rate, rather than having to negotiate for it individually. FilmOn X (formerly Aereokiller), which streams video content online, says it is the equivalent of a cable system and should have the same compulsory license.

Fair use groups Public Knowledge and the Electronic Frontier Foundation agree, having filed briefs in support of FilmOn. Fox and the other Big Four TV networks -- with the support of the National Association of Broadcasters and many others -- say it is not entitled to the license. US District Court Judge George Wu sided with FilmOn X, which prompted Fox and the networks to appeal to the Ninth Circuit to overturn that decision. In oral argument, the TV networks' lawyer, Neal Katyal of Hogan Lovells, said the fact that FilmOn X "now claims" that it is a cable system "contradicts the text of the Copyright Act, contradicts its purpose and contradicts what every judge looking at this found," except judge Wu.