Alki David‘s streaming service “merely seeks to participate in the briefing and oral argument” at the high court it says in a motion to intervene. The main reason: Courts have enjoined FilmOn X from offering over-the-air broadcast signals via the Internet, but have not put a similar restriction on Aereo. FilmOn X is appealing the decisions from the Ninth Circuit and the D.C. Circuit. Still, it says, “Aereo has an incentive to leave injunctions against its primary competitor intact and may not adequately represent FilmOn X’s interests before this Court.” The company adds that it doesn’t want to delay the case. Broadcasters say that Aereo and FilmOn infringe on their copyrights by profiting from their programming, without paying a license fee. The companies counter that they simply lease antennas and other technologies that consumers clearly have a right to use to watch the local station programming for free.
A federal judge today found the Alki David-run free-TV-over-the-Internet company in contempt of court for violating a nearly nationwide ban. Hoping to avoid Judge Rosemary Collyer’s wrath, FilmOn X claimed in late October that it was system error that led to copyrighted programming from Fox, NBC and ABC being played on the service in the Boston area in September. Despite her order on September 5 for FilmOn X to go dark everywhere but in New York, Connecticut and Vermont, the DC-based judge did not impose a fine on the company for its one-day indiscretion. Collyer did say in a hearing Monday that she would fine FilmOn X $20,000 a day if there was a repeat of the mistake — intentionally or not.
On day of the deadline set by a federal judge last week to explain why she shouldn’t hold FilmOn X in contempt of court for violating a nearly nationwide ban, the Alki David-run free-TV-over-the-Internet company basically said “Oops.” Calling the looming contempt “a drastic remedy,” FilmOn X on Monday said it was simply a mistake that it had copyrighted programming from Fox Broadcasting, ABC and NBC playing in the Boston area after DC-based Judge Rosemary Collyer’s order on September 5 to pull the plug everywhere but in New York, Connecticut and Vermont. “At worst, FilmOn X’s testing of its software inadvertently allowed a limit number of users in the First Circuit to access copyrighted programming for a brief period of time after the Hearst decision. Upon discovering that this error had occurred, FilmOn X immediately and voluntarily took corrective action before Plaintiffs brought this issue to this Court’s attention,” said the 15-page response filing from the company (read it here).
FilmOn X didn’t gain any traction from Aereo‘s legal win in Massachusetts last week. In fact, today’s decision by a DC-based federal judge to deny the Alki David-run free-TV-over-the-Internet company a modification to the almost nationwide preliminary injunction ordered on September 5 might have landed FilmOn X in more legal hot water. “It appears that FilmOn X may be acting in defiance of this Court’s Preliminary Injunction, possibly by retransmitting Plaintiff’s copyrighted broadcast programming in the Boston area,” the 3-page ruling (read it here) from Judge Rosemary Collyer said, referring to her ruling last month in favor of Fox Broadcasting, ABC and NBC. The judge is giving FilmOn X 6 days to explain why she shouldn’t hold them in contempt of court.
The latest legal hand-slap comes after FilmOn X on October 10 petitioned the court to add Massachusetts, Rhode Island, New Hampshire and Maine to the states not covered by the injunction. It cited the October 10 denial of an injunction sought by a Hearst-owned ABC affiliate against Aereo in Massachusetts as legal justification, but today the judge distinctly disagreed and told FilmOn X to check its facts and courts.
The government may be shut down but the streaming wars are going on and on in the nation’s capital. Broadcasters today petitioned the Supreme Court over Aereo and fellow streaming service FilmOn X is also back asking a DC-based federal judge to lift some of the almost nationwide injunction she imposed back in early September. The Alki David-run free-TV-over-the-Internet company is using the recent Aereo win against a Hearst-owned ABC affiliate in the federal Massachusetts District Court as their legal wedge. “Hearst v. Aereo is the law of the First Circuit. Pursuant to that law, FilmOn X’s service is legal; the performances rendered by FilmOn X users are private; and they do not infringe on any copyright. Accordingly, this Court should immediately modify the Preliminary Injunction in this case to recognize that FilmOn X has the legal right to operate its service in the First Circuit in accordance with Hearst v. Aereo,” said the Emergency Motion (read it here) to modify the scope of Judge Rosemary Collyer’s injunction. “It is well established that a preliminary injunction should be modified where a new decision is issued that would render the continuance of the injunction in its original form inequitable,” the 14-page motion filed Thursday further argued. A previous FilmOn X stay against the injunction was rejected by Judge Collyer …
Global Showbiz Briefs: Egypt Extends Canadian Filmmaker’s Detention; Helen Flint Launches Little Island Productions; More
Egypt Extends Detention Of Canadian Filmmaker Held Since August
Egyptian authorities have extended the detention of Canadian filmmaker John Greyson and his colleague Tarek Loubani, who have been held since August without being charged. Officials say they are being held during an investigating of items found in the men’s hotel room, including a camera attached to a small plane. The Canadian government has called for the release of Greyson and Loubani, who have been on a hunger strike in jail for the past two weeks. There also were several shows of support during the Toronto Film Festival. They were en route to Gaza on a humanitarian mission August 14 when they asked Cairo police for directions and were arrested. Amnesty International says scores of those arrested since have been deprived of their basic legal rights.
Helen Flint Launches TV Company Little Island Productions
Former Company Pictures exec Helen Flint has formed Little Island Productions with a view to producing scripted drama for the UK and global markets. Flint spent eight years with All3Media’s Company Pictures (The White Queen) and produced 2006 award winner Longford. Company’s Alex Protherough is joining Flint at Little Island as Production Executive. Little Island will also sport a production services arm to aid international and UK domestic companies seeking to benefit from the new UK TV tax credit.
Broadcasters say that both services violate local TV stations’ copyrights by streaming free, over-the-air transmissions without payment. And the media companies were encouraged by recent court victories over FilmOnX. But Aereo CEO Chet Kanojia, who has been winning most of his legal battles, says not so fast. Since there’s never been an opportunity to look at the FilmOnX system in depth “we don’t know what the technology is,” he told the Goldman Sachs Communacopia Conference. “I just don’t know so I shy from doing a comparison.” Meanwhile, Kanojia says he has a winning hand with his case that says Aereo merely allows consumers to lease technologies — including antennas — that they have a right to use. Unlike cable and satellite companies that push channels to consumers (the set top box typically filters out the ones you don’t want), with Aereo “the signal sits dead without your intervention.” That makes his system similar in legal terms to an Internet server, such as Google Drive, that allows consumers to store their music collections. “If you stop Aereo, you’d be stopping entire industries.”
Related: Aereo Expands To Four More Cities
That’s three legal losses in a row for FilmOn X in a week. Today the D.C. District Court denied emergency stay motions by the company and its CEO Alki David against an almost nationwide injunction from a case launched by Fox Television Stations, ABC and NBC. The free-TV-over-the-Internet company was trying to stop the September 5 ordered preliminary injunction from taking effect, to have it modified it so that it covered only the court’s direct jurisdiction and to increase the amount of the bond form $250,000 to 2.75 million. The judge said No all round. “FilmOn X’s arguments are not persuasive. The Court weighed the relevant factors – likelihood of success on the merits, possibility of irreparable harm, balance of the harm, and the public interest – it its Opinion and concluded that all four considerations favor Plaintiffs. That conclusion remains in equal force now. Most importantly, Plaintiffs are likely to succeed on the merits of their claim,” said Judge Rosemary Collyer Thursday in a memo opinion accompanying her order (read them here and here). The injunction is set to take effect today though FilmOn X subscribers can still access material that the service has licenses for. Still for David, the broadcasters’ win today is a mere battle in his war with them. “They continually try to thwart innovation, destroy the first amendment and steal from the public. It is best they give up soon because it will be cheaper less bloody for them in the long run,” he told me this afternoon.
2ND UPDATE, 12:30 PM: The contempt of court ruling leveled against FilmOn on Tuesday is quickly turning into a battle outside the courts as well. Today plaintiff CBS told me that it did not withhold any licensing agreement from FilmOn from the court because it never received one – despite what the streaming service’s lawyer says. Last night, after I reported on the contempt of court ruling against FilmOn and its CEO Alki David, attorney Ryan Baker contacted me to say he had given the document requested by the court to CBS counsel on August 20 but the network never made that known to the federal court. Baker alleged that such a failure of notification led Judge Naomi Reice Buchwald to make the contempt of court ruling on Tuesday. CBS clearly begs to differ. Read their statement here:
No wonder this lawyer’s client was held in contempt. The court held a complete hearing on this subject and no licensing agreement was produced by either this lawyer or his client. Of course no such agreement exists. Would not this lawyer produce such an agreement to the court if it did? The client failed to produce such an agreement, the lawyer failed to produce such an agreement and the court pointed this out in its opinion (see, pages 20-21 of the opinion). CBS has never received or for that matter even seen such a so-called executed licensing agreement. Talk of diversionary tactics. This is sour grapes so strong that the fermentation has already begun. They lost, period.
LONDON AUG 1st 2013 FILMON.COM – the world’s largest provider of internet television owned by media billionaire Alki David – today announced a landmark agreement with Spanish state-broadcaster TVE to stream an international version of the channel on a global basis.
The historic arrangement will see FilmOn become the first ever IPTV provider to enter into an agreement with TVE to stream the broadcaster’s content straight to PCs and smartphones on a revenue share basis.
Another month, another salvo in the on-going multi-pronged legal trench warfare between the broadcasters and FilmOn founder Alki David. This time, it’s CBS who is back in court against the billionaire digital media entrepreneur. Today the network asked U.S. District Court in New York to enter an order (read it here) to ensure that David holds up his part of a $1.6 million copyright infringement settlement reached last year. Specifically, CBS is invoking Section 5.3 of the agreement. That was supposed to get David to shut down sites like www.cbsyousuck.com and remove other online material slagging and attacking the broadcaster. This came out of a sidebar suit that David instigated against CBS Interactive and CNET Networks Inc over downloading. The late July 2012 agreement that was supposed to have sorted all this out also bars FilmOn from streaming broadcast network programming, and requires him to pay major providers such as CBS, ABC, Fox, and NBC. The agreement last year arose from the broadcasters suing David in 2010 over use of their signals and content and then him going after CBS in federal court in California on behalf of a coalition of musicians against its use of peer-to-peer file sharing programs. “Despite this express obligation, Mr. David has refused to take down material he posted on the Internet supporting, promoting, and …
Media provocateur Alki David‘s service stopped streaming over-the-air broadcast signals in DC in May, after ABC, Fox, and NBC filed a copyright infringement suit in federal court . But now he says he’s back on in the Nation’s Capitol. He’s also returning fire with a countersuit (read it here) that charges the networks with trying to “abandon their responsibilities to the American public.” The broadcasters have the benefit of using the publicly owned airwaves for free, which also gives them the right to demand carriage on basic cable. In return “the Networks have an obligation to serve the public.” But the filing says that they “continue to attempt to block consumers’ access to valuable and beneficial technologies” like the streaming service provided by David’s company — which had been called Aereokiller and now calls itself FilmOn X. “The FilmOn X technology enhances customers’ ability to watch the same free over-the-air broadcast content that the American public is entitled to receive in accordance with the public interest recognized by Congress and the Supreme Court,” the court filing says. It also alleges that NBC broke the law by refusing to negotiate a carriage deal with FilmOn X:
Looks like the streaming of network TV is about to end in Washington DC. Less than a week after ABC, NBC and Fox filed a copyright infringement lawsuit in federal court in DC against Alki David‘s FilmOn and his Aereokiller service, the media industry provocateur says he’s pulling the broadcasters from his streaming service. “To avoid more inane lawsuits and one that is clearly rigged, we have decided to take down the Major Broadcasters in Washington DC and replace them with Independent stations. Something we are considering doing all across the country,” David said today in an open letter to broadcasters. David offers no date for when he will pull the networks from his service or any timeline. The lawsuit filed by the three networks on May 23 asked the court for an injunction to stop FilmOn and Aereokiller from being able to stream their local programming online.
ABC, NBC and Fox today filed a lawsuit against digital entrepreneur Alki David‘s FilmOn and his Aereokiller service, claiming copyright infringement. Allbritton, which owns ABC’s TV station Washington DC also is a plaintiff in the suit. Filed in Federal District Court in D.C. on David’s 45th birthday, the complaint (read it here) is similar to one filed in Los Angeles in August by ABC, NBC and CBS against his streaming site that then was known as BarryDriller.com. It, in turn, hewed closely to a suit filed against the site by Fox days earlier. (David this week finally settled his name-game tussle with Barry Diller and the latter’s Aereo service.)
David is a media industry provocateur whose FilmOn streams programming taken from over-the-air signals, and it — like Diller’s Aereo — has incurred the wrath of broadcasters. In today’s suit, the networks and Allbritton claim that “Aereokiller provides users and subscribers the ability to receive whichever broadcast station the user or subscriber chooses, ultimately having the ability to watch live broadcast television programming over the Internet using any device. In other words, through the Aereokiller service, Defendants built a business founded on offering its users and subscribers a ‘live’ Internet and mobile streaming service based on Plaintiffs’ television programming, but without authorization or license from Plaintiffs.”
The freewheeling head of FilmOn has to stop using names including Aereokiller and BarryDriller.com for his broadcast streaming service according a settlement overseen by U.S. District Court Judge Audrey Collins. The decision appears to end three lawsuits: Last year IAC chief Barry Diller — a major investor in Aereo — sued David for creating a site called BarryDriller.com. In February, David returned fire, suing Aereo for trademark infringement after he bought the naming rights to a product called Aero. And in March, Aereo sued David for creating a site called Aero.tv. Like Aereo, FilmOn streams programming taken from over-the-air signals — and has also incurred the wrath of broadcasters who say that it violates their copyrights. A New York court has allowed Aereo to expand while it weighs the broadcasters’ challenge. But in December a California court granted a temporary injunction that applies locally against David’s service. Even so, he says that with the trademark settlements FilmOn now “can continue rolling out our service nationwide. We are currently in 45 markets compared to Aereo’s two.” He adds in a statement: “So eat s*it Barry.”
UPDATE, 10:51 AM: Aereo spokesperson Virginia Lam says the company is “disappointed that the judge declined to rule on the merits on an emergency basis” but adds that it is “confident that when the merits are considered in connection with a preliminary injunction motion, Aereo will prevail.”
PREVIOUS, 8:14 AM: U.S. District Court Judge Audrey Collins yesterday denied “without prejudice” the temporary restraining order that Aereo requested as part of its trademark infringement suit against FilmOn‘s Alki David. Aereo is suing FilmOn and David for creating a site called Aero.tv that streams broadcast station programming — much like Aereo’s service. “By intentionally selecting a name that is confusingly similar to Aereo’s mark, Defendants are likely to confuse and divert consumers, inducing them to use Defendants’ business rather than Aereo’s,” the suit alleges. The company, backed by IAC chief Barry Diller, wants the U.S. District Court in Los Angeles to bar David from using the Aero name, transfer the Aero.tv domain to Aereo, and pay court costs and triple damages. David had already sued Aereo saying he has the right to its name after he recently picked up the trademark to a product called “WinTV-Aero-m” that’s been around since 2011. He warns there’ll be ”another barrage of lawsuits” if Aereo doesn’t comply.
In a perfect world, FilmOn’s Alki David would stop fooling around with personal and corporate names and let the courts deal with serious questions instead of whether he’s done something to sully someone’s reputation or infringe on a trademark. But since we live in an imperfect world, some poor judge now may have to spend time deciding whether David or streaming service Aereo has a right to be aggrieved about the use of a corporate name. David recently picked up the trademark to a product called “WinTV-Aero-m” and sued Aereo for trying to “free-ride off the valuable goodwill developed and associated with the name ‘Aero.’” Now Aereo is suing FilmOn and David for creating a site called Aero.tv that streams broadcast station programming — much like Aereo’s service. “By intentionally selecting a name that is confusingly similar to Aereo’s mark, Defendants are likely to confuse and divert consumers, inducing them to use Defendants’ business rather than Aereo’s,” the suit alleges. The company, backed by IAC chief Barry Diller, wants the U.S. District Court in Los Angeles to bar David from using the Aero name, transfer the Aero.tv domain to Aereo, and pay court costs and triple damages. David says that if Aereo wants to “sue me or anyone else for freedom of speech then bring it on.” Last year a court enjoined David from maintaining a streaming site that he called BarryDriller.com. In addition the major broadcast …
The media industry provocateur is irked that journalists (including me) take his bete noir, Barry Diller-backed Aereo, more seriously than his FilmOn.TV. But now Alki David will bring his message directly to the public. He says that he’ll start an ad campaign in the New York tri-state area to promote his streaming service with messages on TV, online, print and outdoor. His company adds that the marketing “will also be rolled out in the coming weeks in the other 30 major U.S. markets which the FilmOn service is already freely available” including Chicago, Los Angeles, Dallas, Miami, Washington DC, San Francisco and Denver. David says Boston will come online next week with other cities to be added each week “thereafter.” The first TV ad shows David “driving a red Ferrari at high speed while watching TV on a mobile phone. A second commercial featuring Mike The Situation from Jersey Shore fame will appear on local television in the coming weeks.”
I’m getting a headache trying to keep track of FilmOn‘s Alki David feud with Aereo, and especially the lawsuits over who has the right to use different corporate names. David’s already defending himself in a suit filed by IAC chief Barry Diller, a major Aereo backer, over a web site David created called BarryDriller.com (it now seems to be defunct); major TV networks also sued David’s streaming service called Aereokiller. Here’s the latest: Yesterday he filed suit at U.S. District Court in Los Angeles alleging that Aereo misappropriated its company name. The story begins in early 2011 when electronics manufacturer Hauppauge Computer Works introduced a product called “WinTV-Aero-m” — it’s a tuner that plugs into computer USB ports so users can watch over-the-air digital TV. FilmOn began to market it about a year ago. And what do you know? This week Hauppauge assigned the trademark for “Aero” to FilmOn. In the new lawsuit, FilmOn charges that Aereo is “seeking to unfairly capitalize on the success of WinTV-Aero-m” hoping to “cause consumer confusion.” Aereo allegedly is attempting to “free-ride off the valuable goodwill developed and associated with the name ‘Aero.’” FilmOn wants the court to stop Aereo from using its name, and to pay unspecified damages. Aereo says that David’s suit ”is not only baseless but frivolous and [the company] will respond to it, as appropriate.”