As Expected, TV Networks Win Copyright Ruling Against Alki David's Name-Changing TV Streaming Service

from the bad-news,-bad-precedents dept

We warned that this was likely: Alki David, the eccentric rich guy who is being sued for an online TV streaming service with some similarities to Aereo -- whose name he changes (as he himself admits "on a whim") regularly -- has lost in court yet again. The company, which had been known as FilmOn, BarryDriller and Aereokiller, is apparently back to being called FilmOn, except that it's now FilmOn X. As we noted, there are significant differences between Aereo and whatever-the-hell David wants to call his company -- and part of that is that Aereo built its system very carefully with copyright law in mind, and was also quite careful about its legal strategy, with a wider plan for establishing a good legal precedent showing that copyright law shouldn't be different just because the length of a cable is different.

Unfortunately, FilmOn's similar efforts have been sloppy and at times reckless. It's no wonder that Aereo has won all of its court rulings, while David's multi-named offerings have lost all of their court rulings. Earlier, FilmOn (as BarryDriller) had lost in California. The court had held that the ruling only applied in the 9th Circuit, in part because of Aereo's success in the 2nd Circuit. That resulted in the networks suing again in the DC Circuit, where we predicted David would lose, setting yet another bad precedent, and that's exactly what happened. The court basically looks at the rulings in NY and California, and then comes to the same basic conclusion as the California court, more or less accepting the TV networks' argument that even though there's an individual antenna for each user, and each copy is only accessible to that single user account, each stream counts as a "public performance."

This is because copyright law is insane. The only real difference between someone watching a TV show remotely online using an antenna in their own home with a Slingbox and doing what these services do is in where "the box" and "the antenna" are placed. That's it. That means the real difference is merely the length of the wire between the TV and the antenna/recording device. If the cable is long (i.e., the antenna and recording device are at a different location), suddenly, according to these two courts, it's a "public performance." If the cable is short, it's not. That doesn't make any logical sense at all.

The TV networks asked for a nationwide injunction here, and Judge Rosemary Collyer basically gave it to them with the minor exception that it doesn't apply in the 2nd Circuit, given the Aereo rulings. Of course, as pretty much everyone has suspected, this growing "circuit split" almost certainly means that one of these cases will end up before the Supreme Court. I just hope that it gets there with Aereo's legal team, rather than David's. The TV networks, obviously, are hoping for the opposite.

Update: As if you need any more evidence of how "seriously" David is taking the case, check out his "response" to this rather big loss:

I’m on my yacht in (the) Mediterranean at the moment so they can kiss my hairy Greek ass.

He also claimed that the judge is "in the pockets" of the entertainment industry -- a charge that people throw around way too often.

Filed Under: alki david, copyright, public performance, rosemary collyer, streaming
Companies: aereo, aereokiller, barrydriller, filmon