<b><i>Online Extra</b></i> DC, California Next Battlegrounds Over Online Streaming

Online television streaming company Aereo suffered a defeat last week in a New York federal court, but competitor FilmOn X is pressing on with similar fights against copyright lawsuits in Washington and California.

FilmOn X LLC and Aereo Inc. offered services that retransmitted television shows online for a fee, drawing the wrath of broadcast networks. The networks filed lawsuits against Aereo in New York and against FilmOn in New York, Washington and California, arguing the services violated federal copyright law. In June,'the U.S. Supreme Court found'Aereo ' and, by extension, FilmOn ' violated the networks' exclusive right to 'publicly perform' the TV programs.

By comparing the services to cable companies, however, the Supreme Court laid the foundation for the next round of litigation. After the cases were sent back to the federal district courts, Aereo and FilmOn renewed their defenses to the networks' claims by arguing that if they were like cable systems, they were entitled to a performance license under federal laws that applied to cable companies.

On Oct. 23, a federal judge in New York'sided with the broadcast networks, finding Aereo was unlikely to succeed with its new arguments. But FilmOn is just getting started in D.C. and California. Lawyers for FilmOn and the networks appeared before U.S. District Judge Rosemary Collyer in Washington, who set a schedule for filing briefs on the question of whether FilmOn should be considered a cable system. Those deadlines stretch into next spring.

FilmOn's lawyer, Ryan Baker of Baker Marquart in Los Angeles, told Collyer on Thursday that he had asked the networks if they were willing to put the D.C. litigation on hold and focus on the case in California, given the similarities. He said he never got a response. Collyer said she would keep the case going in her courtroom, noting that she might reach a different conclusion than the judge in California.

'We'll just soldier on,' Collyer said.

Baker and lawyers for the networks briefly got a chance to make their pitches on the cable question on Thursday. Arnold & Porter partner Robert Garrett, lead attorney for most of the networks suing FilmOn, told Collyer that the U.S. Copyright Office made it clear that it didn't believe services such as Aereo and FilmOn were entitled to a license.

Baker countered that the U.S. Copyright Office didn't reject either company's license application, instead accepting them on a provisional basis while litigation was pending, with the understanding it might reject them later. Jenner & Block partner Paul Smith, lead counsel for Fox-affiliated companies, said all of the parties had agreed that the courts should decide whether FilmOn (and Aereo) are cable systems entitled to licenses.

Court orders prohibit FilmOn and Aereo from streaming the broadcast networks' programs in the United States at the moment.

The Supreme Court had compared Aereo to community antenna television, or CATV, systems that were the precursor to modern cable companies. FilmOn and Aereo have argued that 1976 amendments to the federal Copyright Act that brought CATV systems within the scope of the law should apply to their services too.

The networks counter that although the high court identified similarities between the CATV systems and a streaming service such as Aereo, it didn't go so far as to find that such a service was a cable system under federal copyright law.

Collyer ended Thursday's hearing by noting that her order about the upcoming briefing schedule would include a section requiring all sides to behave civilly toward one another and to call her chambers if any problems came up during discovery.

'I know that this is hot litigation,' she said.

Zoe Tillman'writes for'Legal Times, an ALM sibling of'Internet Law & Strategy. E-mail:'[email protected]. Twitter:'@zoetillman

'

Online television streaming company Aereo suffered a defeat last week in a New York federal court, but competitor FilmOn X is pressing on with similar fights against copyright lawsuits in Washington and California.

FilmOn X LLC and Aereo Inc. offered services that retransmitted television shows online for a fee, drawing the wrath of broadcast networks. The networks filed lawsuits against Aereo in New York and against FilmOn in New York, Washington and California, arguing the services violated federal copyright law. In June,'the U.S. Supreme Court found'Aereo ' and, by extension, FilmOn ' violated the networks' exclusive right to 'publicly perform' the TV programs.

By comparing the services to cable companies, however, the Supreme Court laid the foundation for the next round of litigation. After the cases were sent back to the federal district courts, Aereo and FilmOn renewed their defenses to the networks' claims by arguing that if they were like cable systems, they were entitled to a performance license under federal laws that applied to cable companies.

On Oct. 23, a federal judge in New York'sided with the broadcast networks, finding Aereo was unlikely to succeed with its new arguments. But FilmOn is just getting started in D.C. and California. Lawyers for FilmOn and the networks appeared before U.S. District Judge Rosemary Collyer in Washington, who set a schedule for filing briefs on the question of whether FilmOn should be considered a cable system. Those deadlines stretch into next spring.

FilmOn's lawyer, Ryan Baker of Baker Marquart in Los Angeles, told Collyer on Thursday that he had asked the networks if they were willing to put the D.C. litigation on hold and focus on the case in California, given the similarities. He said he never got a response. Collyer said she would keep the case going in her courtroom, noting that she might reach a different conclusion than the judge in California.

'We'll just soldier on,' Collyer said.

Baker and lawyers for the networks briefly got a chance to make their pitches on the cable question on Thursday. Arnold & Porter partner Robert Garrett, lead attorney for most of the networks suing FilmOn, told Collyer that the U.S. Copyright Office made it clear that it didn't believe services such as Aereo and FilmOn were entitled to a license.

Baker countered that the U.S. Copyright Office didn't reject either company's license application, instead accepting them on a provisional basis while litigation was pending, with the understanding it might reject them later. Jenner & Block partner Paul Smith, lead counsel for Fox-affiliated companies, said all of the parties had agreed that the courts should decide whether FilmOn (and Aereo) are cable systems entitled to licenses.

Court orders prohibit FilmOn and Aereo from streaming the broadcast networks' programs in the United States at the moment.

The Supreme Court had compared Aereo to community antenna television, or CATV, systems that were the precursor to modern cable companies. FilmOn and Aereo have argued that 1976 amendments to the federal Copyright Act that brought CATV systems within the scope of the law should apply to their services too.

The networks counter that although the high court identified similarities between the CATV systems and a streaming service such as Aereo, it didn't go so far as to find that such a service was a cable system under federal copyright law.

Collyer ended Thursday's hearing by noting that her order about the upcoming briefing schedule would include a section requiring all sides to behave civilly toward one another and to call her chambers if any problems came up during discovery.

'I know that this is hot litigation,' she said.

Zoe Tillman'writes for'Legal Times, an ALM sibling of'Internet Law & Strategy. E-mail:'[email protected]. Twitter:'@zoetillman

'