• by Wendy Davis  @wendyndavis, April 5, 2016

Digital rights groups Public Knowledge and Electronic Frontier Foundation are urging a federal appellate court to rule that online video distributor FilmOn is entitled to a compulsory cable license.

"FilmOn will not harm programmers or the pay television industry by allowing people to more easily watch free, over-the-air broadcast television," the groups say in a new friend-of-the-court brief. "Instead, by fitting into the existing legal regime for secondary transmissions, it will introduce new competition and give viewers more options."

The organizations argue that U.S. District Court Judge George Wu in the Central District of California correctly decided last year that FilmOn qualifies for a cable license.

A coalition of broadcasters, including ABC, CBS, Fox and NBCUniversal, recently asked the 9th Circuit to reverse Wu's decision. The broadcasters argue that FilmOn isn't a cable system, because it doesn't stream programs from a traditional "facility."

Public Knowledge and the EFF counter that the copyright law's licensing provisions should be interpreted in a "technologically neutral" manner. "What is important is whether something acts like cable," the groups write. "This sensible approach should apply to services that make use of the Internet as part of their retransmission pathways for broadcast television."

The digital rights organizations also argue that granting FilmOn a license will benefit consumers -- particularly those who live in areas with weak antenna signals.

"For a variety of technological and economic reasons, incumbent broadcasters are not serving the needs of consumers who want access to their programming," the groups say, adding that consumers can't receive free programs unless they're within the broadcast range of nearby stations.

"Broadcasters could build networks of repeaters to expand free access to their programming and reach consumers in 'digital dead zones.' But broadcasters’ reliance on retransmission consent payments from cable and satellite operators gives them a disincentive to expand free over-the-air access," the groups argue.

FilmOn, owned by billionaire Alki David, has been battling for the right to legally stream TV programs to consumers without the broadcasters' consent since at least 2010.

Initially, the company launched a streaming service that relied on a system similar to the defunct ivi TV, which attempted to distribute television online and also argued it was entitled to a compulsory license. In 2012, the 2nd Circuit Court of Appeals in New York ruled that ivi wasn't a cable system because it didn't limit its streams to specific geographic locales. The appellate court said in its decision that compulsory licenses are only available to systems that transmit shows to restricted markets.

FilmOn then re-launched using the same system as the now-defunct Aereo. 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 geo-locations, 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. Aereo shut down, but FilmOn still streams programs in the public domain, as well as those it licenses.

FilmOn now contends that it should be considered a cable system given the Supreme Court decision -- which said the company's platform was "for all practical purposes a traditional cable system."

Last year, Wu accepted FilmOn's argument. He wrote that the Supreme Court's characterization of the technology is "about as close a statement directly in defendants' favor as could be made."

Since then, judges in Washington, D.C. and Illinois came to the opposite conclusion and ruled that FilmOn is not entitled to a cable license.