Web-based streaming services, which allow users to view movies and television programs on their computers, televisions, and mobile devices without having to download large video files, have become a major component of the entertainment and digital media industries in recent years. This has led to many high-profile legal disputes between streaming companies, who seek to take advantage of new technologies, and copyright owners like television broadcasters and film studios. A recent ruling found a streaming company liable for copyright infringement. Fox Television Stations, et al. v. FilmOn X LLC, et al., No. 1:13-cv-00758, order (D.D.C., Nov. 12, 2015). Specifically, the court found that, by streaming television at close to the same time as the original broadcaster, the defendant infringed the plaintiffs’ right “to perform the copyrighted work[s] publicly.” 17 U.S.C. § 106(4).
Copyright law embodies a wide range of rights associated with creative works, including the right to perform or exhibit the work to the public. In general, an individual or company must obtain a copyright owner’s permission, usually in the form of a license, to perform the work for the public. With regard to movies and television programs, this includes making the work available to the public by streaming it online.
Major networks like ABC, CBS, NBC, Fox, and the CW typically own the copyrights to the programming they broadcast. Cable companies that rebroadcast programming from these networks to their subscribers are subject to compulsory licensing under federal copyright law. See 17 U.S.C. §§ 111(c), (d). This means that they do not have to obtain a license in advance for every program they rebroadcast, but they must submit semiannual statements of account to the U.S. Copyright Office. In recent years, several web-streaming companies have claimed that they are also covered by this compulsory licensing scheme.
One of the first major court decisions addressing he streaming of copyrighted content was Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). It held that the use of a digital video recorder (DVR) to record live television for later playback, also known as “time-shifting,” does not violate copyright law, since the audience for the recorded content would most likely be the same person or people who would have otherwise watched it live. The U.S. Supreme Court reached a different conclusion with regard to live and time-shifted streaming of broadcast television programming via computers and other devices with internet connections, finding that this does constitute a public performance. American Broadcasting Companies v. Aereo, 573 U.S. ___ (2014).
The plaintiffs in FilmOn X filed suit before the Supreme Court decided Aereo. They sought an injunction similar to one granted by a California court, which was limited in scope to the Ninth Circuit. Fox Television Stations v. BarryDriller Content Systems, 915 F.Supp.2d 1138 (C.D. Cal. 2012). The court granted the FilmOn X plaintiffs’ request for a preliminary injunction in September 2013, and in November 2015, it granted their motion for summary judgment on liability in a sealed order. Interestingly, in the California case, the court recently found that the defendants “are potentially entitled to a compulsory license under 17 U.S.C Section 111(c) if they meet the applicable requirements,” but it noted that they could still be liable for infringement if they do not. Fox Television Stations, et al. v. FilmOn X LLC, et al., Nos. 2:12-cv-06921, 2:12-cv-06950, order (C.D. Cal., Jul. 24, 2015).
For over 38 years, business litigation attorney James G. Schwartz has fought for the rights of Bay Area businesses and business owners, and he helps clients in a wide variety of litigation and transactional matters. Contact us online or at (925) 463-1073 to schedule an initial confidential consultation with a knowledgeable and experienced business advocate.
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New Live-Streaming Apps Present Potential Copyright Problems for Users and Businesses, Pleasanton Business & Commercial Law Blog, November 16, 2015
Digital Music Service Shuts Down as Part of Copyright Lawsuit Settlement, Pleasanton Business & Commercial Law Blog, July 15, 2015