Broadcasters were dealt a huge setback Thursday when a district judge ruled FilmOn was entitled to a compulsory license to stream broadcasters’ signals over the Internet.
The highly technical decision is in stark contrast to a ruling against streamer Ivi and the Supreme Court ruling against Aereo, which found the service violated broadcast copyright when it streamed broadcast stations on the Internet for a fee. Aereo argued it was like a cable service, and so did FilmOn.
U.S. District Court judge George Wu said he disagreed with those decisions, however, he also allowed for an immediate circuit court appeal and is maintaining the injunction against FilmOn.
If Wu’s decision is upheld in the ninth circuit, it could force TV stations to license their copyrighted programming to streamers and over-the-top services, causing a seismic shift in the TV business.
“This advisory opinion contravenes all legal precedent,” a Fox spokesperson said. “The court only found that FilmOn could potentially qualify for a compulsory license, and we do not believe that is a possibility. The injunction barring Film On from retransmitting broadcast programming over the internet still remains in place and the full burden of proof still lies with FilmOn. We will of course appeal and fully expect to prevail.”
The Federal Communications Commission is also planning to take up a proceeding this fall that will decide whether streaming services should be given the same rights as cable companies. The streamers would still have to negotiate retransmission consent fees with broadcasters.
“Even if this decision is not followed, it should focus attention on the disparate treatment under the law between traditional cable systems and online services,” said John Bergmayer, senior staff attorney for Public Knowledge.