FilmOn founder Alki
David says he plans to sue CBS and its CNET tech Web site for "illegal
distribution of DRM [digital rights management] removal software as well
as the illegal distribution of file sharing software with malicious intent to
infringe on copyright."
That is
according to an e-mail from David Monday morning (Dec. 27).
David posted a
YouTube video last week attacking CNET for what he alleges is the site's own
copyright infringement even as CBS is suing him for copyright infringement. He
told B&C he was posting another
video to outline the lawsuit. A CBS spokesperson had not been reached for
comment at press time on Monday on the suit threat, but CBS said last week in
response to the first video that it respects intellectual property rights and
suggested David's infringement charge was off base.
The countersuit
would be a response to a copyright infringement suit by CBS and the other
networks and their affiliated studios.
A judge last month issued a temporary restraining order against FilmOn
while it considers the larger issue of its legality. FilmOn streams TV
station signals online for $9.95 a month. It has not negotiated retransmission
consent payments with broadcasters, but David says it does not need to.
He argues that
he is violating no copyright laws, and that his service fits the definition of
a cable system when it comes to the statutory license to retransmit broadcast
signals over the air per U.S. copyright law, but that it is not a cable system
when it comes to the Communications Act requirement to obtain express
permission from a station before such retransmission.
David says he
saw the site as a business-to-business aid to broadcast and cable programmers,
but was not shying away from a fight. "If somebody wants a fight, bring it
on," he told B&C in
early October before the broadcaster suit was filed.
"Mr. David
is clearly not feeling very good about his prospects in the court system [a reference
to the broadcaster suit against him]," CBS said Monday, reiterating its
response to the initial YouTube video last week. "He is hardly an expert
on intellectual property rights. CNET respects such rights, and meanwhile
the court has issued a temporary restraining order against Mr. David and his
company. We continue to think that the court is the best venue to determine the
outcome of this case, one in which unauthorized use of our content has been
distributed illegally."
The broadcast
networks/station groups have also sued online video site ivi TV, which is
also streaming TV station signals without retrans deals. The New York
court in the ivi case has not issued a temporary injunction. Meanwhile, a
Seattle court
is still considering ivi's request for a declaratory ruling that it is not
in violation of copyright.
It, too, says
it is allowed to redistribute TV station content under a blanket copyright
license, but does not fit the FCC definition of MVPD subject
to retrans payments.
The FCC has yet
to weigh in beyond telling the IPTV distributor in the context of a
program carriage complaint last spring that it had not made a convincing case
to the media bureau that it qualified as an MVPD subject to program access
rules.
As the content
distribution model increasingly moves online, who can deliver what to whom is
going to become increasingly important. For example, the FCC is applying online
content access conditions to the Comcast/NBCU joint venture, the first big
media meld that implicates the over-the-top video space.
