Private or Public? The Developing Circuit Split on Internet TV Retransmission

Private Public

It appears that a Circuit split is developing on the issue of whether Internet services that transmit network television programs are engaged in a transmission to the public in violation of the networks’ copyrights.  The networks argue that the Internet streaming services (such as Aereo) are engaged in public transmissions because large numbers of members of the public can access television programs using these services; the streaming services argue that they merely facilitate one-to-one private transmissions because their technology uses multiple mini-antennas, each dedicated to one user.

As this blog noted in April, the Second Circuit has ruled that Aereo does not violate the copyrights of television networks when Aereo transmits television programs to its subscribers.  The crux of the Second Circuit’s analysis is that because Aereo’s central broadcasting facility uses a large number of tiny antennas that are each (if only temporarily) assigned to an individual customer for the purposes of capturing and recording television programs for that customer, Aereo does not publicly transmit television programs.  Rather, it engages in multiple private transmissions that do not violate the Copyright Act.

However, on September 5th the U.S. District Court for the District of Columbia held that FilmOn X, a service substantially similar to Aereo’s, was engaged in public transmission of television programs in violation of the Copyright Act.  The Court issued an injunction banning the FilmOn X service in all areas outside the Second Circuit (New York, Connecticut and Vermont), where the Aereo decision is binding precedent.  On September 12, the court refused to stay that injunction.  FilmOn X has said that it plans to appeal from the D.C. ruling, and another streaming service known as Aereokiller, which shares common ownership with FilmOn X, is appealing from a ruling against it in California in December.  In the California ruling, District Court Judge Wu granted injunctions blocking Aereokiller’s operations on grounds substantially similar to those of the D.C. ruling.

In the D.C. litigation, FilmOn X had tried to persuade the court to follow the Aereo case.  However, the D.C. court was not persuaded that the FilmOn X service should properly be viewed as an agglomeration of private performances, rather than a public transmission.  As the court noted, “while each user may have an assigned antenna and hard-drive directory temporarily, the mini-antennas are networked together so that a single tuner server and router, video encoder, and distribution endpoint can communicate with them all”. As the court said, FilmOn X’s system “is hardly akin to an individual user stringing up a television antenna on the roof.”

The Federal Court in Massachusetts will have the next opportunity to give its view on this issue, as WCVB TV in Boston has filed proceedings in that court seeking to prevent Aereo’s operation.  The proceedings are still in their early stages; the parties are due in court for a scheduling conference this week.

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