WASHINGTON — Online video-streaming company FilmOn X continues to fight for a compulsory license and access to broadcast-TV station signals, arguing it qualifies as a cable system for that purpose.
A compulsory license would allow FilmOn X to deliver TV-station programming from the major networks at the government-set rate, rather than having to negotiate individually with each broadcaster. The issue is whether online video distributors are effectively multichannel video providers (MVPDs) eligible for the statutory license that allows them to avoid negotiating for individual network broadcast content.
That issue is unsettled, with the U.S. Copyright Office saying OTT providers aren’t eligible, but also saying that could change depending on what the courts and the Federal Communications Commission decide.
The FCC is mulling defining some over-the-top distributors as MVPDs and the agency’s chairman, Tom Wheeler, has pointed to the need to prevent “old rules” from hampering online video competitors like FilmOn X. But the FCC has also put that decision on the back burner while the marketplace develops.
FilmOn X has filed a new brief in its challenge to a November 2015 U.S. District Court for the District of Columbia dismissal of its request that the court rule the online TV-station streaming service is a cable service entitled to that compulsory license. The brief adds some new twists, too.
The U.S. District Court for the Central District of California ruled in a separate case that FilmOn X was such a service and qualified for the license, which the broadcast networks challenged. Neither matter has been resolved, so FilmOn X is asking the D.C. court to stay the California court’s decision until the 9th U.S. Circuit Court of Appeals resolves that challenge.
FilmOn had also asked the D.C. court to stay its decision until the California case was resolved, but was unsuccessful. The company has said that court abused its discretion by denying the stay.
“The [U.S.] district court failed to examine the close relationships between the plaintiffs in the two parallel actions, which would have revealed no meaningful differences between them,” FilmOn X said. “The district court then abused its discretion when it refused a stay on the ground it might decide this case ‘slightly differently’ than the California court. The district court reached the opposite conclusion. To alleviate that conflict, this Court should vacate the district court’s order and stay this action pending final resolution of the California Action. In any event, FilmOn X is eligible for a cable-system license.”
U.S. District Judge Rosemary Collyer ruled that FilmOn X, which streamed on-demand and day-and-date video online, was liable for infringing the plaintiffs’ (Fox and other broadcast networks) performance right under the Copyright Act and was not eligible for the compulsory license.
Oral argument has not yet been scheduled in the D.C. appeals court. FilmOn X is represented by Baker Marquart.
