“FilmOn X is a cable system and is therefore entitled to retransmit [Window to the World's] broadcast programming in accordance with the compulsory license system established by Congress for cable systems,” the company alleges in an amended complaint filed on Thursday with U.S. District Court Judge Charles Korocas.
FilmOn -- as well as rival online video distributor Aereo -- are arguing in cases pending throughout the country that they are “cable systems” and entitled to compulsory licenses. That stance represents a change in strategy from earlier this year, when they argued that they didn't infringe copyright due to their technological architecture.
Both companies began contending that they are cable systems after the Supreme Court ruled in June that Aereo infringed copyright by using antennas to capture and retransmit broadcast programs. So far, no judges have accepted Aereo's and FilmOn's arguments regarding cable licenses, but the lawsuits involving the companies haven't yet concluded.
The companies also could gain cable licenses if the Federal Communications Commission changes its definition of the term “multichannel video provider” -- a move that Chairman Tom Wheeler recently requested. Wheeler said in a blog post last week that he is asking the FCC to “modernize our interpretation of the term 'multichannel video programming distributor' (MVPD) so that it is technology-neutral.”
If the FCC does so, Web-only video distributors could gain “the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets,” Wheeler wrote last week.
FilmOn's newest legal papers in Illinois come 11 months after the company first sued Window to the World in hopes of obtaining a declaratory judgment that the multiple antenna system then in use didn't infringe copyright. FilmOn says it brought the complaint after being threatened with a copyright infringement lawsuit by the broadcaster Window to the World.
Earlier this year, Window to the World responded to the lawsuit by counterclaiming for copyright infringement. All of the litigation was put on hold pending the Supreme Court decision about Aereo.
In the papers filed last week, FilmOn describes its system as antenna-based.
“FilmOn X has physical facilities located in the United States where it receives primary transmissions in the form of over-the-air signals transmitted by one or more television broadcast stations licensed by the FCC,” the company alleges. “It then makes secondary transmissions of those signals by wires, cables, or other communications channels to subscribing members of the public who pay for such service. Thus, FilmOn X fits squarely within the statutory definition of a cable system.”
But a FilmOn spokesperson says the company stopped using antennas this summer. FilmOn's lawyer, Ryan Baker, adds that the company no longer transmits Window to the World's programs.
Baker says that complaint's description of FilmOn's service is “correct when the facilities are operating.” He adds, “They are not currently operating. That has been the case across most of the country for months.”