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http://www.hollywoodreporter.com/th...-compulsory-license-broadcast-networks-987614
This focuses on the business practices of MVPD's like Filmon thats being questioned here.
This focuses on the business practices of MVPD's like Filmon thats being questioned here.
O'Scannlain rejects FilmOn's proposition that Section 111 should be interpreted in a technology agnostic manner, writing that "if Congress had intended § 111 to service the entire secondary transmission community, doling out statutory licenses without regard to the technological makeup of its members, it would have been easy enough for Congress to say so."
The judge then writes that Congress defined "cable system" in a "detailed, if arguably ambiguous way," and that it would be strange for lawmakers to have meant to sweep in secondary transmission services (like digital streamers) given that it provided a separate compulsory system for satellite carriers. In short, Congress' intention is deemed as narrow instead of broad.
O'Scannlain also distinguishes this case from Aereo by saying that the Supreme Court dealt with "an altogether different provision of the Copyright Act, the Transmit Clause," which, the judge notes, unlike the compulsory system for broadcast television, "refers in sweeping terms to transmissions or communications made 'by means of any device or process,' and broadly defined 'device' and 'process' to mean 'one now known or later developed.'”
"Nor can we conclude that the Copyright Act’s broad purposes compel the conclusion that internet-based retransmission services are eligible for compulsory licenses under § 111," continues the 9th Circuit opinion. "Rather, we see powerful arguments that such a reading could very well undermine the balance of interests Congress attempted to strike when it designed § 111."
In particular, O'Scannlain writes that extending the compulsory license scheme to internet-based retransmission services could "jeopardize" the cable TV ecosystem by granting rights to digital operations that have no geographic boundaries.
He also accepts the parade of horribles submitted by broadcasters and their amici ranging from making content vulnerable to piracy and risking putting the United States in violation of treaty obligations.
Additionally, the 9th Circuit judge accepts the "longstanding, consistently held" position of the administrative agency — the U.S. Copyright Office — as also concluding that retransmitters like FilmOn aren't entitled to a compulsory license under Section 111.
"FilmOn and other Internet-based retransmission services are neither clearly eligible nor clearly ineligible for the compulsory license § 111 makes available to 'cable systems,'" concludes the opinion. "The Copyright Office says they are not eligible. Because the Office’s views are persuasive, and because they are reasonable, we defer to them."
In reaction to today's opinion, FilmOn attorney Ryan Baker said he was disappointed and pointed out that the 7th Circuit and D.C. Circuit will also be addressing similar issues soon. He adds, "FilmOn X remains hopeful that those appellate courts will apply the statute as written and shun any attempt to impose extratextual limitations on the compulsory license."