The court battles over Internet TV are heating up again, and their resolution will determine whether content owners have a veto right on TV watchers' ability to access TV in new and innovative ways. Yesterday, the federal district court in Washington DC ordered FilmOn (formerly called Aereokiller) to shut down its service that brought local broadcast TV to the Internet in major cities. The order directly contradicts the decisions of several New York federal courts, including the Second Circuit Court of Appeals. Meanwhile, FilmOn has an appeal pending before the Ninth Circuit, which means we’ll be hearing from yet another court shortly, and possibly the Supreme Court down the line. Even Congress may get involved.
This issue has been kicking around the federal courts since at least 2007. It starts with TV programming that viewers already have a legal right to see and record, either through a pay TV subscription or from free over-the-air broadcasting. Then companies like Cablevision, Aereo, Dish Networks, and FilmOnX use the Internet or private digital networks to improve the viewing experience and give customers more choice and control. Their technologies send TV to Internet-connected devices (Aereo, FilmOn, Slingbox), add personal recording functions (all of them), give control over commercial-watching (Ad Hopper), or integrate TV with social media (Aereo, FilmOn).
What's more, technologies like Aereo's and FilmOn's decouple the provider of the programming from the provider of the viewing technology. TV watchers can choose where to buy programming (cable, satellite, or free broadcasts) and separately choose who will bring the programming to their personal devices, and with what kinds of search, recording, and social media functions.
Unfortunately, it appears TV broadcasters want control of the entire TV-viewing experience from camera to eyeball, and can't stand the thought of technology companies enhancing the user experience and profiting from that enhancement without permission from the broadcasters. So they have sued each one of these technology providers for copyright infringement in the past seven years, with FilmOn being the latest.
The issue in FilmOn, as in Aereo, is whether services that assign each user a tiny antenna at a central office in their city, and send the signal from that antenna over the Internet to the user's devices, is infringing copyright. Copyright law covers "transmission to the public" but not private, personal transmissions. The current U.S. Copyright Act, written in 1976 with traditional cable TV in mind, isn't clear on whether Internet streaming from a single antenna to a single viewer is public or private. The courts are split: federal trial courts in Los Angeles and now D.C. say this form of streaming is public, so that copyright owners can collect a toll or shut it down at will. The Ninth Circuit, which covers nine far western states including California, will rule on the question in the next few months. But trial and appeallate courts in New York say that this kind of streaming is private, so copyright law doesn't touch it.
Yesterday’s decision was a bad one for TV audiences and innovators alike, and we hope the Ninth Circuit follows its sister court and finds this kind of service to be legal (in fact, EFF submitted an amicus brief in the case urging just that). But there’s another problem with the decision, one that may fall below the radar but shouldn’t: the court's narrow view of the public interest. Courts are not supposed to shut down a business before trial unless it's in the public interest to do that. But Judge Rosemary Collyer, in two short sentences, stated that the public interest "can only be served by upholding copyright protections." The Supreme Court has said this just isn't so: copyright must strike a balance between authors' rights and the rights of the public, which has an interest in choice and innovation as well as compensating copyright holders. In other words, what's good for copyright holders is not always good for the public.
We hope that the appeals courts keep the big picture in mind as they work through these cases. They should send a message that copyright law protects innovation and choice as well as copyright holders' profits. Stay tuned.