FilmOn Loses A Second Case, Meaning That Supreme Court May Get A Second Shot At Aereo Decision

from the it-ain't-over-'til-alki-david-sings dept

Fri, Nov 13th 2015 9:29am — Mike Masnick

Earlier this year, lots of copyright law watchers were taken by surprise when Alki David's video streaming service, FilmOn (though its name constantly has changed) actually won a case in California. If you don't recall, the service was a sort of fake knock-off of Aereo, enabling streaming broadcast TV service on the internet. Alki David, an eccentric, publicity-hound wealthy guy, had been sued earlier with a similar service, using a different technical infrastructure, and had responded with some ridiculous countersuits. When Aereo hit the scene, and had been carefully vetted by copyright lawyers who believed (strongly) that it was following the letter of the law, David suddenly declared that FilmOn was using the same micro-antenna infrastructure and got sued.

In the early days, Aereo was winning its cases, while FilmOn was losing its cases. It was so ridiculous that I heard conspiracy theories that the Hollywood-connected (he likes to promote the fact that he's acted in some movies) David had actually set up FilmOn as something of a legal foil to Aereo to set precedents in one direction. That's probably too big of a conspiracy theory, but either way, Aereo made it to the Supreme Court and famously lost when the Court made up its weird "looks like a duck" test, saying that Aereo "looked" like a cable TV system, and that Aereo's service was a "public performance" and thus infringing.

After the dust settled, people realized that, based on the Supreme Court ruling, it sounded like an earlier 2nd Circuit appeals court ruling in 2011 over a company named ivi was possibly overturned. ivi offered a similar service, but claimed that it was a cable TV service and just had to pay compulsory Section 111 fees to rebroadcast broadcast television. Aereo and FilmOn both quickly pivoted in their cases to argue that if the Supreme Court said they "looked like" cable, then the ivi ruling was no longer good law, and they, too, should be able to operate just by paying the compulsory licenses. For Aereo, the lower court didn't buy it. It wasn't going that well for FilmOn either, with a NY court actually holding the company in contempt for pushing this argument.

And then there was the California ruling from earlier this year... followed up this week by another loss for FilmOn (found via Eriq Gardner at THResq), this time in DC. The ruling itself is apparently under seal so the exact reasoning is not clear, but it appears that a real circuit split is potentially developing, meaning there's a real chance that, at the very least, the issue of whether or not online streaming services can just pay Section 111 compulsory fees could end up before the court. It would be somewhat ridiculous and hilarious if FilmOn ended up winning that argument, while Aereo (and ivi) got completely shut down. Copyright law can be weird sometimes.

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Filed Under: alki david, broadcast tv, cable tv, copyright, section 111, streaming, tv
Companies: aereo, filmon

30 Comments

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TechDescartes (profile), 13 Nov 2015 @ 9:34am

Duck, duck…goose?
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Anonymous Coward, 13 Nov 2015 @ 9:48am

Still waiting for the parade of horribles you and others predicted would arise if Aereo lost to come true. I suspect I'll be waiting forever. Doesn't the FUD approach get old? I'm sure it generates clicks, but are they worth it?
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Anonymous Coward, 13 Nov 2015 @ 9:57am

the conspiracy theory is connected to the members of the Supreme Court! as stated, their 'looks like a duck' test! talk about touting to the whims of Hollywood and the entertainment industries, while disastrously holding back innovation!!
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Anonymous Coward, 13 Nov 2015 @ 10:02am

Re:
Not sure about all that, however ou using nothing but buzzwords to achieve precisely nothing sure does get old.
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PRMan, 13 Nov 2015 @ 10:02am

Re:
The parade of horribles is that only established players like Dish can offer internet streaming of cable channels. And only because they slipped it into their many public channel disputes on their satellite services.

Government regulations that kill small players like Aereo and strengthen established near-monopolists like Dish are very bad policy indeed.
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Anonymous Coward, 13 Nov 2015 @ 10:34am

Re: Re:
The parade of horribles included, inter alia, claims that cloud computing would be severely disrupted. Snorezville. Didn't happen. Won't happen. Total FUD.
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Anonymous Coward, 13 Nov 2015 @ 10:37am

Um, broadcast television is dead. Even the broadcasters don't want anyone to watch.
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jupiterkansas (profile), 13 Nov 2015 @ 10:42am

Re:
Doesn't endlessly nagging a website that spreads nothing but FUD get old?

You keep clicking. Is it worth it?
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Anonymous Coward, 13 Nov 2015 @ 10:46am

Re: Re:
I'm pointing out that Mike's FUD about a loss for Aereo taking down the cloud was just that: FUD. The fear-mongering here is atrocious.
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Anonymous Coward, 13 Nov 2015 @ 10:52am

Re:
Actually, no horribles, just goodness. Broadcast TV will be extint even sooner now. So, like you, I think its great.
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Anonymous Coward, 13 Nov 2015 @ 11:03am

Re: Re:
And yet millions of people still watch broadcast TV, whether over the air or via satellite and cable. Strange how you guys just can't stand the winners.
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jupiterkansas (profile), 13 Nov 2015 @ 11:04am

Re: Re: Re:
I know of plenty of other websites with atrocious fear mongering - and that's why I don't go to those websites. Why waste my time doing something I don't like?
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RD, 13 Nov 2015 @ 11:44am

WTF?
Jesus H -WTF is going here? This entire comment thread is nothing but AC'a competing for who can out-shilltroll (tm) each other. It has now devolved into a recursive game of eating its own tail.
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James Burkhardt (profile), 13 Nov 2015 @ 11:48am

Re: WTF?
Actually, its mainly the same AC trolling named commentators. I only see one ac reply to the original trolling comment.
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Anonymous Coward, 13 Nov 2015 @ 11:52am

Great Country
The ruling itself is apparently under seal so the exact reasoning is not clear,...

Secret laws, secret rulings, secret detentions, etc.. What a great country.
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Mike Masnick (profile), 13 Nov 2015 @ 11:56am

Re:
Still waiting for the parade of horribles you and others predicted would arise if Aereo lost to come true. I suspect I'll be waiting forever. Doesn't the FUD approach get old? I'm sure it generates clicks, but are they worth it?

It's kind of tough to demonstrate the innovations that are NOT happening thanks to fear of litigation, isn't it? The big concern is still very much there, which is that the Aereo ruling could have the potential to chill innovation in the field of cloud computing. I will say that because of the odd way in which the SCOTUS ruling came down -- focusing so much on the issue of "looks like cable" that it probably was not as bad as it COULD have been, where the ruling would have resulted in real problems for cloud providers. But it should be noted, contrary to your mocking, that a good part of the reason why SCOTUS was careful on that point was because folks raised the concerns of a bad ruling on cloud computing.

So, you're attack here seems fairly misguided. First, you're asking people to show you what hasn't happened as a result of the ruling (kind of an impossibility) and second, you ignore that the specifics of the ruling were at least somewhat more targeted than the issue that most of the pre-ruling concerns discussed.

So, no, it wasn't "FUD". Also, who the fuck thinks that writing about the intricacies of copyright law "generates clicks"? Are you daft?
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Anonymous Coward, 13 Nov 2015 @ 12:38pm

Re: Re:
I'm not talking about claims of innovations that didn't happen. I'm talking about claims like this: "If you don't think that copyright holders won't take a victory here and go after various cloud services, you haven't been paying attention to the history of copyright fights over the past few decades." Source: https://www.techdirt.com/articles/20140306/00350726450/aereo-case-isnt-about-aereo-about-future-clou d-computing-innovation.shtml

There are many more claims just like it. From that same article: "No matter what you think of Aereo, this decision will have a major impact on what sort of internet we have going forward." Where is the "major impact"? Where are the "copyright holders" going "after various cloud services"? It's all FUD, Mike.

And even after the opinion came out, you spouted more FUD: "lots of other internet services are... suddenly left swimming in the dark." Source: https://www.techdirt.com/articles/20140626/18064627693/aereo-ruling-is-disaster-tech-because-looks-l ike-cable-test-provides-no-guidance.shtml

In that same article, you predicted doom and gloom for years to come: "And... what that means is there will now be a ton of litigation, as old gatekeepers attack new innovations, testing out every angle of this bizarre "looks like an infringing system" test." Where is the "ton of litigation"? Where are the "old gatekeepers" attacking "new innovation" as a result?

FUD. FUD. FUD. Can't you admit it?
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blogagog (profile), 13 Nov 2015 @ 1:52pm

Every time I hear that company name, I think of boobs.
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Anonymous Coward, 13 Nov 2015 @ 2:12pm

Re: Re: Re:
Where are the "old gatekeepers" attacking "new innovation" as a result?

Where is this related new innovation. Can you show us a ton of related new start ups?
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Anonymous Coward, 13 Nov 2015 @ 2:41pm

Re: Re: Re: Re:
The biggest case to cite Aereo so far is Fox v. Dish, and the court there UPHELD Dish's service as noninfringing under Aereo. In other words, Aereo's loss further cemented the legality of the cloud. Mike's predictions are total FUD, yet he can't admit it.
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Mike Masnick (profile), 13 Nov 2015 @ 10:28pm

Re: Re: Re:
I'm not talking about claims of innovations that didn't happen. I'm talking about claims like this: "If you don't think that copyright holders won't take a victory here and go after various cloud services, you haven't been paying attention to the history of copyright fights over the past few decades." Source: https://www.techdirt.com/articles/20140306/00350726450/aereo-case-isnt-about-aereo-about-future-clou d-computing-innovation.shtml

As noted above (did you even read my comment?), the initial fear was over the potential of a much more broad ruling that would have impacted wider cloud services. However, BECAUSE of people raising those concerns, the SCOTUS ruled narrowly (if bizarrely) and that has certainly helped to limit some of the initial concerns. Focusing on the "is it cable" question and avoiding the larger copyright issues helped (as noted above, and ignored by you).

And even after the opinion came out, you spouted more FUD: "lots of other internet services are... suddenly left swimming in the dark." Source: https://www.techdirt.com/articles/20140626/18064627693/aereo-ruling-is-disaster-tech-because-looks-l ike-cable-test-provides-no-guidance.shtml

That was true. The lack of a clear standard in the SCOTUS ruling left plenty swimming in the dark. As you or someone else notes below, it did show up in at least some other lawsuits already (thankfully, those have been decided correctly, but it did show up). Furthermore, I personally know of at least two companies that shelved plans for new cloud services because of Aereo.

Just because YOU are ignorant of the impact, doesn't mean there was none.
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Anonymous Coward, 14 Nov 2015 @ 4:53am

Re: Re: Re: Re: Re:
Are dish and fox start-ups?
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nasch (profile), 14 Nov 2015 @ 7:28am

Re: Re:
Are you daft?

Do you really have to ask?
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Anonymous Coward, 14 Nov 2015 @ 3:05pm

Re: Re: Re: Re:
That was true. The lack of a clear standard in the SCOTUS ruling left plenty swimming in the dark. As you or someone else notes below, it did show up in at least some other lawsuits already (thankfully, those have been decided correctly, but it did show up). Furthermore, I personally know of at least two companies that shelved plans for new cloud services because of Aereo.

Just because YOU are ignorant of the impact, doesn't mean there was none.

You're moving the goal posts. You said "there will now be a ton of litigation." That didn't happen. The Fox v. Dish lawsuit was filed three years ago. It wasn't litigation initiated in after Aereo. Can you not even admit that the "ton of litigation" you predicted did not come true? Or can you really not be honest here? It was total FUD, Mike. You deal in fear mongering for a living. It's unbelievable how much FUD you dish out.
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Anonymous Coward, 14 Nov 2015 @ 5:46pm

Aereo's problem
From what I remember, it seemed that the problem with the aereo fight was that the saved program could be streamed almost immediately.

What they should do is resurrect it, and allow customers to physically buy the antenna. They get some amount of storage for a monthly fee. Recorded programs are delayed by at least one hour. Viewing will be restricted to a single IP, to prevent public performances, with a limited number of changes per month. (Hey, I might sometimes watch from the ex's house.)

This way, aereo doesn't own the antenna. Heck, the customer could buy a 1TB hard drive for a one-time fee, so the customer would own the storage medium *and* the antenna. The new aereo would just host it.
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Anonymous Coward, 15 Nov 2015 @ 9:52am

Re: Aereo's problem
From what I remember, it seemed that the problem with the aereo fight was that the saved program could be streamed almost immediately.

No, the problem was that the big media companies didn't like it. Thus, the court contorted itself in all kinds of ways bending over backwards to kiss some BMC ass. Your proposal does nothing to change any of that.
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Anonymous Coward, 15 Nov 2015 @ 10:08am

*Cloud streaming companies* We are trying to rebroadcast over the air stuff online

*Court* Sounds too much like a cable provider. You would have to pay compulsory fees. Sorry, as you are now you aren't legal.

*Cloud streaming companies* Oh.. Okay. Well.. we'll pay the fees then. We do want to be above board on all this.

*Court* ... N-nnnnoo....
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Anonymous Coward, 15 Nov 2015 @ 4:29pm

average_joe just hates it when due process is enforced.
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Anonymous Coward, 16 Nov 2015 @ 3:04am

Re: Re: Re: Re: Re:
So, you've ignored two comments in a row where Mike points out that you're referring to a comment he made before the ruling, a comment which he states is invalidated by the eventual ruling, because of comments like his which prompted the narrower, less-all-encompassingly-awful ruling.
You're taking his "this ruling could be bad" comments from before the ruling was made, ignoring the fact that the ruling itself wasn't as bad as the "this ruling could be bad" comment warned it might be, then asking why the ruling didn't result in as much badness as it might have done, if it had been worse than it actually was.

Might as well ask why we're not all dead because the Sun didn't explode yesterday.
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jupiterkansas (profile), 16 Nov 2015 @ 7:48am

Re: Re: Re: Re: Re:
Why not dish out the FUD? It doesn't stop you from reading it.
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