Aereo, FilmOn, and the “Shimmer” of maybe-unlawfully-clever digital entertainment delivery

Those of you of a certain age will remember the classic SNL parody commercial for “New Shimmer“:

New Shimmer

It’s kind of the same thing with Aereo, isn’t it?  As I said in my now-legendary-in-my-own-mind multi-part post, every next judge presented with the relevant inquiries in the Aereo case — i.e., the application of terms in the Copyright Act to technological facts not remotely anticipated by its drafters — takes a different run at judicial legislating, while contemptuously dismissing the last guy to touch this digital hot potato as the dimmest of stooges.

Yes, it’s a lot like Shimmer.  Is this digital mini-stream time-place-concept-shifting business stuff a floor wax, or is it a dessert topping?  Or, as Chevy Chase urges, could it really be both?

The latest comes in via an email from Owen Phillips , who writes as follows:

Hi Ron, I like your blog! I work with FilmOn and you’ve probably seen it’s involved alongside Aereo in a major test of Copyright Office rules. Late last week the Office turned down Aereo’s request for Compulsory License under Section 111—provisionally. At the same time it put out a request to the public to comment on the issues surrounding these decisions over 30 day period.

I think your readers would be interested to hear about this—and we’d like to maximize the public’s right the be heard in all of this.

He included this Copyright Office link for public comment.  Why wouldn’t I post that?  It’s not a spam link or something.  It’s the government!  Why wouldn’t we want to help the gummint figure out whether FilmOn is a delicious addition to the end of a special meal, or the perfect way to keep that linoleum looking great?

Well, let’s see.  What do we know? We know that Owen really likes my blog.  We don’t dismiss that as flattery intended merely to smooth the way for my consideration of his pitch, for it is entirely credible that one would like my blog, and that one would say so, too, at the slightest provocation.

What’s FilmOn?  Go look for yourself at the FilmOn website.  And before we go any further with what Owen wants you to hear about, here’s what is, more precisely, going on with FilmOn — an item from  yesterday, July 21, 2014:

Broadcasters Seek To Hold FilmOn In Contempt Over New Streaming Service 

Several days after the Supreme Court ruled that Aereo infringed copyright by streaming television shows on the Internet, the rival company FilmOn announced that it had developed a new type of streaming service that would avoid legal pitfalls.

FilmOn vowed to roll out its new so-called “teleporter” service to 18 cities, and allegedly went ahead with the launch late last month in New York. But broadcasters say the teleporter is no more legitimate than any other service that streams television shows without licenses.

Now, a coalition of TV broadcasters is urging U.S. District Court Judge Naomi Reice Buchwald in the Southern District of New York to hold FilmOn in contempt of court for launching the newest iteration of its streaming service.

The broadcasters argue that the service violates Buchwald’s 2012 order against FilmOn, which prohibits the company from infringing copyright by streaming television shows online.

FilmOn counters that it’s not in contempt for several reasons. The company says that it disabled the “teleporter” service as soon as it learned of the broadcasters’ opposition.

On the one hand, Owen might have told me about that business.  On the other hand, I think the piece quoted above was written by someone with a definite opinion on the matter too.  And as between one of them, only one — that would be Owen — not only likes my blog, but told me he likes me blog.  I don’t know whether Wendy Davis, who wrote that press release, likes this blog also.  I mean, obviously there’s every reason to assume she does; what’s not to like?  But I don’t know either way.  You need to know that.

No, of course that doesn’t make me biased toward Owen.  It’s just information.  So is this, which just happens to be something Owen (well, yeah, we’re on a first-name basis; his email said, “Dear Ron,” didn’t it?) sent me:

The Supreme Court’s recent decision in American Broadcasting Cos., Inc. v. Aereo, Inc. (“Aereo”), 134 S. Ct. 2498 (2014), affords a unique opportunity to shape the law to ensure that the compulsory licensing scheme in section 111 of the Copyright Act—which was designed to facilitate the legal delivery of broadcast content to the consuming public—continues to serve its fundamental purpose amidst constant technological evolution. When it was drafted, almost 40 years ago, section 111 was primarily designed to ensure delivery of broadcast content to rural communities, which otherwise may not have been able to access that content. Today, many only have access to that content through the Internet. More broadly, consumers increasingly rely on the Internet to obtain and manage information. Countless new business models and technologies have developed to respond to that demand. Predictably, traditional business interests have vigorously fought to suppress innovation and secure for themselves the monopoly profits associated with the growing market for internet services.

Although the Supreme Court held in Aereo that certain internet retransmission services engage in public performances that are regulated by the Copyright Act, it suggested that services like Aereo and FilmOn X, LLC may still provide consumers with access to broadcast content by operating within the compulsory licensing scheme. The Court held that Aereo’s system is “substantially similar” to and “is for all practical purposes a traditional cable system.” Aereo, 134 S. Ct. at 2501, 2506. It also held that Aereo’s activities are “highly similar to” community antenna television systems, which the “1976 amendments sought to bring within the scope of the Copyright Act.” Id. at 2511. Accordingly, this decision paves the way for Internet retransmission services like FilmOn X and Aereo to obtain compulsory licenses under the Copyright Act, which would enable consumers to obtain cost-effective access to broadcast content over the Internet. That interpretation will not only benefit companies like FilmOn X and Aereo, it will provide the public greater access to information. A finding that FilmOn X is entitled to a statutory license will also pave the way to further jurisprudence seeking to embrace and promote technological advancement.

On July 11, 2014, FilmOn X applied to the U.S. Copyright Office for a statutory license as a cable system under section 111 of the Copyright Act. It is expected that the Copyright Office will provisionally accept FilmOn X’s application, but will decline to issue the license at this time subject to “further regulatory judicial developments.” See Correspondence from Jacqueline C. Charlesworth, U.S. Copyright Office General Counsel and Associate Register of Copyrights, to Aereo, dated July 16, 2014. Those developments will come, as FilmOn X continues its fight in the courts. FilmOn X believes that it should and ultimately will prevail. However, it is essential that other groups interested in protecting the interests of consumers and improving public access to information join in this fight in support of broad consumer access to information through current and future technologies.

Ok, then.  You’ve got that, and you’ve got, again, this public comment link, and meanwhile someone — someone like FilmOn — just might be sanctioned by a federal judge for not being right about whether to eat the stuff or smear it all over the kitchen floor.

Where’s Chevy Chase when you need him?

By Ron Coleman

I write this blog.