Wednesday, March 22, 2017
Ninth Circuit Holds:
No Right to Provide TV Shows Over the Internet
Three-Judge Panel Holds That Services Providing Access to Copyrighted Programs Are Not ‘Cable’ Services Exempt From Liability for Infringing by Paying a Fee
By a MetNews Staff Writer
A service that records copyrighted television shows that are broadcast over the air and provides them to paying subscribers over the Internet are not “cable companies” which are privileged to engage in retransmission if they pay a statutory fee, the Ninth U.S. Circuit Court of Appeals held yesterday.
Writing for a three-member panel, Judge Diarmuid F. O’Scannlain noted that under the Copyright Act of 1976, a cable company is entitled to a “compulsory license” entitling it to transmit copyrighted works. He said:
“So long as the cable system pays a statutory fee to the Copyright Office and complies with certain other regulations, it is protected from infringement liability….Compulsory licenses are highly coveted, in no small part because, according to the Copyright Office, the royalty payments the Act requires cable companies to pay are “de minimis” when compared to the gross receipts and revenues the cable industry collects, a gap suggesting that the government-set rates fall well below market levels.”
The issue was whether FilmOn X, which provides copyrighted works via the Internet, qualifies as a cable company. An action was brought by Fox and other broadcasting companies seeking a determination that it does not meet the criteria.
O’Scannlain expressed uncertainty as to Congress’s intent in defining “cable system” in §111 of the Copyright Act. That act provides:
“A ‘cable system’ is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.”
The jurist wrote:
“FilmOn and other Internet-based retransmission services are neither clearly eligible nor clearly ineligible for the compulsory license §111 makes available to ‘cable systems.’ The Copyright Office says they are not eligible. Because the Office’s views are persuasive, and because they are reasonable, we defer to them.”
The case is Fox Television Stations, Inc. v. Aereokiller, LLC, 15-56420.
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