District Court Enjoins FilmOn X

By on September 9, 2013 in Copyright, Internet

filmon_logoLast Thursday, September 5, the District Court for the District of Columbia issued a preliminary injunction against FilmOn X, a for-profit company that streams broadcasters’ content—without permission—over the Internet to subscribers. The injunction prevents FilmOn X from operating in nearly every jurisdiction in the country and serves as a major setback for the company founded by billionaire Alki David. The ruling is the latest plot twist in a drama playing out between broadcasters and companies that retransmit their content over the Internet without consent.

The District Court found the preliminary injunction warranted after concluding the plaintiffs (that is, the broadcasters who initiated the suit) would be likely to succeed in their claim that FilmOn X violated their right to perform copyrighted works publicly. The ruling is in stark contrast to a nearly identical case (WNET v. Aereo, Inc.) the Court of Appeals for the Second Circuit ruled on last April. The Second Circuit held that Aereo, a company that operates a similar service to FilmOn X, transmitted “unique copies of broadcast television programs” that are sent to single users at their direction, not to the public at large. Thus, the Court of Appeals ruled that Aereo’s service does not violate the public performance right.

FilmOn X, much like Aereo, uses “minute” antennas to capture the television signals broadcasters are required by law to transmit over-the-air for free. Once captured, the company retransmits the signals over the Internet to subscribers, who have the option of watching content live or (if using the company’s DVR service) at a later time.

By devoting a dedicated antenna to each subscriber, FilmOn X contended that it sent private transmissions over the Internet and thus did not violate the public performance right. Unlike in Aereo, however, the District Court did not find the argument persuasive.

Central to the court’s ruling was its interpretation of the “transmission clause,” located in § 101 of the Copyright Act of 1976. Under the transmission clause, a work is performed “publicly” when it is transmitted “by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” In concluding that the transmit clause applied to FilmOn X, the court wrote:

FilmOn X transmits (i.e., communicates from mini-antenna through servers over the Internet to a user) the performance (i.e., an original over-the-air broadcast of a work copyrighted by one of the Plaintiffs) to members of the public (i.e., any person who accesses the FilmOn X service through its website or application) who receive the performance in separate places and at different times (i.e. at home at their computers or on their mobile devices). FilmOn X violates §§ 101 and 106(4) of the 1976 Act, meaning that Plaintiffs are likely to succeed on the merits of their copyright infringement claim.

Under the District Court’s ruling, FilmOn X is enjoined from operating its service in every jurisdiction excluding the Second Circuit, where the decision in Aereo serves as controlling precedent.

Many commentators believe it will ultimately be up to the Supreme Court to decide the legality of services like FilmOn X and Aereo.

We’ll keep you posted on the developments. Until then, here is the link to the District Court’s ruling.

Kevin Delaney is a 2L at the University of North Carolina School of Law and a second-year master’s student at the UNC School of Journalism and Mass Communication.

 

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FCC’s net neutrality rules head to court today

By on September 9, 2013 in Center for Media Law and Policy

Today the D.C. Circuit will hear oral arguments in Verizon v. FCC, Verizon’s challenge to the FCC’s Open Internet Rules passed in 2010. The rules are designed to prevent Internet service providers from engaging in practices that favor certain content.

While the main question in this case is whether the FCC has the authority regulate the Internet in this way, also at issue is Verizon’s novel First Amendment claim: Verizon contents that it has a First Amendment right to make decisions about how to treat Internet traffic on its network.

Read more about this case and the FCC’s Open Internet Rules here.

 

 

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A UNC Student’s Summer Experience at the FCC

By on September 8, 2013 in FCC

FCC-LogoAs I mentioned back in March, the Center provides summer grants to UNC law and graduate students who have unpaid or low-paying public interest jobs in the field of media law or media policy. (I hope some of you will apply for a grant next year!)  If you have been reading Natasha Duarte’s posts this summer, you have a sense of the amazing experience she had at the Electronic Frontier Foundation.

Well, Natasha wasn’t the only UNC student who had a great summer experience. Below you will find a summary of Minisha Patel’s internship at the Federal Communications Commission.  Minisha is a 3L at the UNC School of Law.

The summer of my second year of law school, I worked as an intern for the Federal Communications Commission (FCC). While at the Commission, I worked in the Wireline Competition Bureau, the Commission’s largest and most important bureau. I worked on the Lifeline program, which is a FCC program created in order to aid low-income individuals by providing them with the opportunity to have discounted phone service. The sole purpose of the Lifeline subsidy is to enable low-income individuals to have the same access to telecommunications as the rest of the population. The Lifeline program’s goal is to connect low-income individuals and aims to enable them to access jobs, health care services, schools, and emergency contacts. The program was created by the Reagan administration but is more popularly known as the Obamaphones.

This summer was a very critical time for the Lifeline program as the telephone carriers and subscribers receiving discounts from the program were defrauding the program. This summer, I worked alongside the FCC attorneys to help create a database and stop the carrier’s that are most liable for frauding the system. In addition, I Engaged in legal research and writing in conjunction with several major rulemakings and adjudicatory proceedings, drafted public notices, small business compliance guides, and comment summaries. I also analyzed specific areas of telecommunications law and administrative law and produced memoranda to assist FCC attorneys. Throughout the course of the internship, I worked directly with attorneys on assigned subject matter and attended meetings on a bi-weekly basis.

This internship helped me gain knowledge about interpreting regulations and taught me about the inner workings of the Federal Communications Commission. The internship further enabled me to understand how the government operates with respect to media and telecommunications law.

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Ads on Wheels: More First Amendment Problems in the Triangle

By on September 4, 2013 in First Amendment

Nearly a year after an advertisement on Chapel Hill city buses sparked controversy, the City of Raleigh is experiencing its own public outcry over transit advertising. The Humane Society of the United States has filed suit against the Raleigh Transit Authority over the agency’s rejection of an advertisement featuring pigs in confined gestation crates used on factory farms.

The proposed ad would have wrapped around the exterior of buses and said, “How would you like to spend the rest of your life in a space as small as a bus seat? It’s what Big Pork wants for pigs. But together we can change that.” The Raleigh Transit Authority rejected the ad because it was “too negative.” 

The complaint, filed in the U.S. District Court for the Eastern District of North Carolina, alleges that the Raleigh Transit Authority’s rejection of the ad is a violation of the Humane Society’s First and 14th Amendment rights. Under the RTA advertising policy, some ads are prohibited, including those for illegal products or services, alcohol or tobacco, or advertisements that are false or misleading. Additionally, advertisements that deal with political issues, causes, or candidates, or that advocate or oppose a particular religion, belief, or creed, are not permitted.

But what about advertisements that are simply “too negative”?  There is nothing in the RTA policy about the agency’s authority to reject advertisements based on their negative messages. Emails between the RTA and the Humane Society show that the rejection took place because the ad was “too negative,” not because it was a political issue or cause. That puts the RTA in a pinch, because its decision to reject the ad was not in line with its own policy. However, one question that will need to be addressed is whether the Humane Society’s advertisement could fit into the political issues/causes category of prohibited advertisements. If the better treatment of pigs is an example of a political cause, then the RTA could refuse to accept the advertisement, and doing so would be in line with RTA policy. But that’s not what happened. The RTA refused the ad because the agency was uncomfortable with the negative tone of the Humane Society’s message.

The Supreme Court has dealt with the issue of transit advertising and the First Amendment only once, in Lehman v. City of Shaker Heights (1974). In that case the Court held that a public forum had not been created in Shaker Heights, Ohio, buses, and that the city’s refusal to permit a political candidate advertisement was constitutional. However, the Supreme Court also has been clear that governments may not discriminate against speech based on viewpoint.

Controversial transit advertisements have been popping up across the nation over the past few years, with several cases going before federal courts in Washington, D.C., California, and Pennsylvania. The subjects of these ads have ranged from Israel to Islam to inmate voting rights. Two recent federal district court opinions explored viewpoint discrimination as it applies to transit advertising, concluding that the refusal to permit ads calling for support of Israel was unconstitutional viewpoint discrimination.

The ad in question in Raleigh already has been featured on buses in Des Moines, Iowa, and Washington, D.C. “without controversy,” according to the Humane Society. The ads’ impact in North Carolina could be significant, however, since N.C. is second in the nation in pork production.

To read more about the contentious transit ads in Chapel Hill last year, see this blog post on the issue.

Liz Woolery is a third-year Ph.D. student studying legal and regulatory issues in mass communication at the UNC School of Journalism and Mass Communication.

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