Aereokiller Cuffed Nationwide [telecom]

By Harry Cole, CommLawBlog, September 6, 2013

U.S. District Judge in D.C. enjoins Aereo-like service > everywhere but the Second Circuit. > > Score a big one for the broadcasters! A federal district judge > in the District of Columbia has enjoined FilmOn X (that would > be the folks formerly known as "Aereokiller" who operated at > "") from operating its dime-sized wannabe-MVPD > service, much like a judge did in Los Angeles late last year. > > But get this - the D.C. judge went way further than the L.A. > judge by extending the injunction NATIONWIDE (except for New > York, Vermont and Connecticut). To say that this complicates > matters in the overall Aereo/Aereokiller universe would be an > understatement. > > First things first. The latest decision was issued by Judge > Rosemary M. Collyer, of the U.S. District Court for the > District of Columbia. FilmOn X had cranked up its service in > the D.C. area last spring, which prompted D.C. broadcasters to > ask the D.C. federal court to shut it down -- essentially the > same scenario that had already played out in New York (with > Aereo's similar service) and L.A. (where FilmOn X, but not > Aereo, was the defendant). As our readers already know, the > Second Circuit judges in NYC declined to enjoin Aereo's > operation, but a U.S District Judge in the Ninth Circuit in > L.A. did enjoin FilmOn X. (We're still awaiting a decision > from the three-judge panel of the Ninth Circuit reviewing that > latter decision.) > > Both the NYC and L.A. decisions were based on the same facts > and underlying precedent presented to Judge Collyer, so she > had two flatly inconsistent model approaches (in her words, "a > binary choice") that she could use as guidance. She opted to > go West Coast, but with a couple of twists.


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As somebody once said, "When the Supreme Court decides not to decide, it decides an awful lot." But in this case, it may not be able to dodge the issue. If the Ninth Circuit upholds the district court's decision in the FilmOn X case, two circuit court decisions will be in direct conflict. Sooner or later, the Supreme Court will have to resolve the issue.

Unless Congress steps in and revises the Copyright Act to clarify the situation.

Neal McLain

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Neal McLain
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