aereo scotus

Public Knowledge, the Washington D.C. based public advocacy group, is joined by San Francisco based Electronic Frontier Foundation and Engine Advocacy, the pro-startup lobbying group, in filing a friend of the court brief Friday asking the D.C. Court of Appeals to reconsider a lower court’s decision to block FilmOn’s service, which delivers free-to-air broadcast channels to consumers’ Internet devices via individually rented remote antenna farms.

“With this brief, we’re seeing that the public has taken a strong interest in its right to access free-to-air broadcast signals and benefit from innovation in business and technology that serve public interest,” said FilmOn Founder & CEO Alki David, regarding the amicus brief filed by the three groups. “It also shows that the ruling is ridiculous and proves that the courts are willfully ignoring the public interest.”

“On the brighter side,” he said, “they do make a good, loud noise for FilmOn name recognition and brand building.”

Citing the need of intellectual property laws to balance public and private interests, the brief focuses on the decision of the court to shut down the antenna rental portion of FilmOn’s business without waiting for it to be tried in court. This kind of preliminary injunction is bad for innovation, it says, and “has implications that go far beyond” the specific service FilmOn X offers.

John Bergmeyer of Public Knowledge explains why this preliminary injunction is unfair (citing for one example the FCC’s stated mission of enhancing access to free broadcast television as opposed to letting free-to-air broadcasters act like private cable channels) and goes on to explain why this case is so important for the future of innovation: “Because some judges still do grant these injunctions routinely, this makes doing anything with technology that might touch on copyrighted content all the more risky. You don’t just risk getting sued. You risk getting shut down, and losing revenue, before you can even fully make your case. Users lose access to services they might depend on, even if they are ultimately found to be perfectly legal, all because some clever lawyers figured out a way to short-circuit the justice system.”

Bergmeyer added, “FilmOn works more like a private antenna than a cable TV service, and doesn’t create a ‘public performance’ of any programming, which means it doesn’t need a license. Just like you don’t need a license to put an antenna on your roof to receive free broadcast TV, you don’t need one to rent an antenna, either.”

One of the most important things the brief reminds everyone is that FilmOn is not breaking the law. Some courts have held that a similar service provided by Aereo is legal. However, because these are preliminary injunctions, nothing about the FilmOn service has been proven to be illegal. That is why the advocacy groups lambast the District Court for failing the public interest so badly. Bergmayer boils down the takeaway on the brief to this: “When district courts ignore Supreme Court precedent and issue hasty preliminary injunction rulings, bad things happen. The DC Circuit should reconsider the District Court’s too-hasty grant of a preliminary injunction.”

The service at the heart of the issue allows users to watch local over-the-air programming (the kind that could once be picked up by a regular antenna) on the Internet or via mobile. FilmOn does this by using tiny antennae to pick up broadcast television signals, storing them in the cloud, and delivering them to subscribers via broadband and mobile. Each antenna is assigned individually to a user — essentially, they are being loaned a specific antenna for private use. The programming is not altered in any way, the broadcaster’s commercials are delivered intact to the viewer. FilmOn’s free service also includes hundreds of licensed channels and videos-on-demand. Aereo’s service charges a monthly fee and only provides the antenna service. (TV Mix is owned by FilmOn Networks.)

FIlmOn CEO and Founder Alki David said at a New York Law School panel on the future of television last month, “We are only offering what is freely available. You cannot steal something that is free.”

Find out more about FilmOn here.

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