Fox Television Stations, Inc. v. Filmon X LLC

• Decision Date: 05 September 2013
• Docket Number: Civil Action No. 13–758 (RMC).
• Parties: FOX TELEVISION STATIONS, INC., et al., Plaintiffs, v. FILMON X LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

966 F.Supp.2d 30

FOX TELEVISION STATIONS, INC., et al., Plaintiffs,

v.FILMON X LLC, et al., Defendants.

Civil Action No. 13–758 (RMC).

United States District Court,

District of Columbia.

Sept. 5, 2013.

Paul March Smith, Jenner & Block LLP, Arobert Alan Garrett, Murad Hussain, Farnold & Porter LLP, Washington, DC, Amy M. Gallegos, Julie Ann Shepard, Richard L. Stone, Jenner & Block LLP, Los Angeles, CA, for Plaintiffs.

Jaime W. Marquart, Ryan G. Baker, Baker Marquet LLP, Los Angeles, CA, Kerry J. Davidson, Law Offices of Kerry J. Davidson, Silver Spring, MD, for Defendants.

OPINION

ROSEMARY M. COLLYER, District Judge.

Defendants operate FilmOn X, a service that uses the Internet to give consumers the ability to watch live over-the-air television channels through their computers and on their mobile devices. FilmOn X also has a digital video recorder, or DVR, capability, permitting users to pause live programming or record shows for later viewing. FilmOn X assigns an individual user the content stream from one of thousands of minute antennas that it operates in major metropolitan areas, including Washington, D.C. Plaintiffs are a group of copyright holders that includes over-the-air television broadcasters and television programmers who have not licensed any of their content to FilmOn X. Plaintiffs complain that FilmOn X is violating their exclusive right to public performance of their copyrighted works, which include local programs and some of the country's most popular evening television shows. Plaintiffs rely on a recent decision from the U.S. District Court for the Central District of California, Fox Television Systems, Inc. v. BarryDriller Content Systems, PLC ( BarryDriller ), 915 F.Supp.2d 1138 (C.D.Cal.2012), in which that court concluded that FilmOn X violated the plaintiffs' copyrights under the Copyright Act of 1976 and barred FilmOn X from offering their content in the Ninth Circuit.

FilmOn X responds that it modeled its process after the system approved in a 2008 Second Circuit case, Cartoon Network, LP v. CSC Holdings, Inc. ( Cablevision ), 536 F.3d 121 (2d Cir.2008). FilmOn X contends that Cablevision held, as a matter of law, that there is no public performance of a copyrighted work if there is a one-to-one relationship between a copy of the copyrighted work and the recipient— i.e., so long as each FilmOn X user has his or her own assigned antenna, there is no copyright violation. FilmOn X notes that the Second Circuit decided in April of this year that a substantially identical Internet service, Aereo, was not committing copyright infringement. See WNET, Thirteen v. Aereo, Inc. (Aereo II), 712 F.3d 676 (2d Cir.2013).

The Court has carefully considered the rulings in Cablevision and Aereo II, but it is not bound by them or by the California court's ruling in BarryDriller, although the Court finds BarryDriller to be more persuasive. This Court concludes that the Copyright Act forbids FilmOn X from retransmitting Plaintiffs' copyrighted programs over the Internet. Plaintiffs are thus likely to succeed on their claim that FilmOn X violates Plaintiffs' exclusive public performance rights in their copyrighted works. Because there is no dispute of fact between the parties—indeed, each has won and each has lost in a different forum on these same facts—the Court will grant Plaintiffs' motion for a preliminary injunction and will convert the scheduled preliminary injunction hearing to a status conference.

I. FACTS

A. The Parties

Plaintiffs ¹ include the four major national broadcast television networks—ABC, CBS, Fox, and NBC—as well as other distributors, rights holders, and DC-area television broadcasters. Am. Compl. [Dkt. 5] ¶¶ 13–26. Defendants, referred to collectively as FilmOn X, are: FilmOn X LLC (formerly known as Aereokiller);FilmOn.tv Networks, Inc.; FilmOn.tv, Inc.; and FilmOn.com Inc. FilmOn X operates a website that combines the functionality of a television with that of a digital video recorder. The Amended Complaint states one claim—that FilmOn X infringes copyrights held by Plaintiffs for, inter alia, local news broadcasts and nationally broadcast television programs including Glee (Fox), The Office (NBC), Grey's Anatomy (ABC), and Elementary (CBS). Id. ¶¶ 37–46; see also id., Ex. B. [Dkt. 5–2] (list of illustrative copyright registrations); see also Mem. Supp. Pls. Mot. (Pls. Mem.) [Dkt. 27–1] at 6 (listing as examples of local programming Washington Nationals baseball telecasts and WUSA 9 News at 6 p.m.). Plaintiffs have provided extensive documentation as to the copyrights they hold for both local and national programming, which is not disputed by FilmOn X. E.g., Decl. Sherry Brennan [Dkt. 27–4] (declaration of Senior Vice President of Fox Cable Network Services, LLC) & Brennan Decl., Ex. A (copyright registration for Fox programming such as a November 20, 2012 episode of The New Girl, a sitcom starring Zooey Deschanel).

FilmOn X has filed an Answer, see First Am. Answer, Dkt. 14, and a Counterclaim for declaratory judgment that it is not infringing Plaintiffs' copyrights, see First. Am. Counterclaim, Dkt. 15, ¶¶ 44–45, which Plaintiffs have answered, Dkt. 24. Plaintiffs filed their Joint Motion for Preliminary Injunction on August 1, 2013. See Pls. Mot. Prelim. Inj. (Pls. Mot.) [Dkt. 27]. Because the parties agree on all material facts, the preliminary injunction hearing scheduled for September 20, 2013 will be converted to a status conference.

B. FilmOn X's Service

FilmOn X offers free and paid services through which consumers can watch live and recorded television over the Internet, including local channels that are affiliates of ABC, CBS, NBC, and Fox that are also broadcast over-the-air. ² FilmOn X began offering its services in a small number of cities in late 2012, including Los Angeles and Chicago. It later expanded to Washington, D.C.³ FilmOn X readily admits that its technology is “similar ... in every relevant way” to the technology at issue in Aereo and BarryDriller.⁴ Defs. Opp. [Dkt. 31] at 1, 14 n. 3. To describe its technology and services, FilmOn X offers the declarations of its CEO and Founder, Alkiviades David, see David Decl., Dkt. 31–1, and its Chief Technology Officer Mykola Kutovyy, who is responsible for “implementing and managing FilmOn's technology,” Kutovyy Decl., Dkt. 31–2, ¶¶ 2–3. There is no dispute between the parties as to the material elements of the technology employed by FilmOn X and the services a user can access. They also agree that the Aereo courts and BarryDriller court described the technology and services accurately. Thus, the Court will summarize FilmOn X's system briefly.

First, a brief peek under the figurative hood.⁵ When it expands to a city, FilmOn X installs an array of “mini antennas, each no larger than the size of a dime and spaced inches apart.” A large number of mini-antennas are aggregated on a circuit board, which also contains other electronic components essential to FilmOn X's Internet broadcast system. An antenna may be assigned to a specific, individual user (“static”). More generally, an antenna is available for “dynamic” allocation by the tuner server—that is, a specific antenna is assigned to one specific individual user only when that user is watching television via FilmOn X and is assigned to a different user when the first user is done. No single antenna is used by more than one user at a single time, and all dynamic antennas are shared.⁶ The antennas are networked to a tuner router and server, which in turn link to a video encoder. The encoder converts the signals from the antennas into a video format viewable by computers and mobile devices. The video encoder is connected to a “distribution endpoint,” which is a “server or group of servers” that delivers the video and audio to FilmOn X users. Defs. Opp. at 6.

When a FilmOn X user selects a channel to watch through FilmOn X's website or a mobile application, the user's request is sent to FilmOn X's web server. The web server sends a command to the tuner router and server. The tuner router and server identify an available antenna and encoder slot, and then the tuner directs the assigned antenna to tune to the requested channel. Once the antenna begins receiving the signal, data for the requested channel flows from the antenna to the antenna router and then to the video encoder, where it is stored on a computer hard drive in a “unique directory” that is created for the specific user. The data then goes through the distribution endpoint, over the Internet to FilmOn X's website or a mobile application, for the user's consumption. Video data remains on FilmOn X's server in the user's unique directory while the user is actually watching television. When the user “finishes viewing the channel” by pressing stop or pause, closing the user application, or switching channels, a “stop” request is passed from the user to the antenna router, which immediately stops retrieving data from the antenna and frees the antenna for use by another user. The data in the user's unique directory is then deleted. Defs. Opp. at 6–7.

A FilmOn X user accesses the service by using an authorized “client application,” which allows access from a desktop or laptop computer via software or the FilmOn X website, filmonx.com, as well as applications or “apps” for mobile devices, such as FilmonTVPlus for Apple's iPhone or LiveTV for Google's Android mobile operating system. The user can then select from a list of available channels within the application. Once the user selects a channel, the technological process described above begins. Defs. Opp. at 5. Below is a screenshot of the FilmOn X website accessed from the Court in Washington, D.C. on August 29, 2013, showing the different local channel viewing options on the left.

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Plaintiffs describe additional characteristics of the FilmOn X service that were not detailed by FilmOn X, although FilmOn X has not controverted them in any...