• by Wendy Davis  @wendyndavis, February 1, 2016

Siding with broadcasters, the think tank Media Institute is urging a federal appellate court to reverse a trial judge's "highly disruptive" decision that online video distributor FilmOn is entitled to a cable license.

The nonprofit argues in a new friend-of-the-court brief that Web-based companies like FilmOn shouldn't be considered "cable systems."

"To treat the Internet service operated by FilmOnX as a cable system is ... to isolate and elevate sterile language above history, logic and policy," The Media Institute writes in papers filed Friday with the 9th Circuit Court of Appeals. 

The organization adds that Congress didn't envision Web-based companies when it enacted the law granting cable systems compulsory licenses. That law defines cable systems as facilities that receive programs and retransmit them via "wires, cables, microwave, or other communications channels."

The Media Institute says the appellate court should grant the broadcasters' request to reverse a decision issued last year by U.S. District Court Judge George Wu in Los Angeles. He ruled that FilmOn should be considered a "cable system," and therefore entitled to a cable license.

Among other arguments, the nonprofit says Wu's ruling could unfairly disrupt the TV industry. "The settled economic expectations of the copyright holders in this arena ... should also weigh heavily against this Court affirming the highly disruptive and novel decision of the District Court," the group argues in its court papers.

The 37-year-old Media Institute has previously sided with copyright holders in other battles against tech companies. Several years ago the company sided with Viacom in its high-profile lawsuit against YouTube for allegedly hosting pirated clips on the service.

The current fight about whether FilmOn is entitled to a cable license is the latest dispute in a long series of battles between itself and TV broadcasters.

In 2010, FilmOn -- owned by billionaire Alki David -- attempted to offer a streaming service similar to the defunct ivi TV, which sought to distribute television programs online. Both companies argued they should be considered "cable systems," and entitled to compulsory licenses.

In 2012, the 2nd Circuit Court of Appeals in New York rejected that argument in a lawsuit involving ivi TV. That court said ivi wasn't a cable system because it didn't limit its streams to specific geographic locales.

FilmOn subsequently re-launched using the same system as Aereo -- also now defunct. That platform relied on individual mini-antennas to capture over-the-air shows in particular locales and stream them to consumers. FilmOn says it authenticated people's geolocations, and only streamed programs to people who could have received them over-the-air.

Aereo and FilmOn both stopped streaming unlicensed programs in 2014, soon after the Supreme Court ruled that Aereo infringed copyright by transmitting TV shows without a license. The Supreme Court said in its ruling that Aereo's platform was "for all practical purposes a traditional cable system," and that cable systems can't transmit programs without licenses.

After that decision came out, Aereo suspended operations altogether. FilmOn still streams programs in the public domain as well as shows that it licenses.

FilmOn also continued to battle the broadcasters in court. The company now argues that the Supreme Court's decision in the Aereo case shows lends support to the argument that FilmOn is actually a cable system, and therefore entitled to a compulsory license.

U.S. District Court Judge George Wu in Los Angeles agreed with FilmOn, writing that the Supreme Court's characterization of the company's technology is "about as close a statement directly in defendants' favor as could be made."

Last week, a coalition of broadcasters asked the 9th Circuit to reverse that decision. FilmOn is expected to file its arguments later this month.