the plaintiffs to post a bond of $150,000, and then stayed further proceedings in the case pending
the Supreme Court’s decision in American Broadcasting Corp. v. Aereo.^516
Shortly after the district court’s decision, the Supreme Court issued its decision in the
case of American Broadcasting v. Aereo, discussed in Section II.B.10 above, ruling that Aereo
violated the public performance right by transmitting the plaintiffs’ works through its system
collectively to public subscribers. That ruling substantively confirms the district court’s outcome
in this case.
- CBS v. FilmOn
In 2010, CBS, NBC, Fox, and ABC brought an action for copyright infringement against
FilmOn for streaming their broadcasting programming without their authorization. After
completion of discovery, the parties settled the action and the court entered a consent order of
judgment and permanent injunction dated Aug. 8, 2012, which prohibited FilmOn from further
infringing plaintiffs’ copyrights, including, but not limited to, through the streaming over mobile
telephone systems and/or the Internet of any of the broadcast television programming in which
any plaintiff owned a copyright. In July of 2014 the plaintiffs moved the court for an order
holding FilmOn and its CEO in civil contempt for violating the injunction by using mini-antenna
technology (1) to broadcast the plaintiffs’ copyrighted content within the Second Circuit in
violation of the Supreme Court’s decision in the Aereo case (discussed in Section II.B.10 above)
and (2) to transmit such content to regions outside the Second Circuit through the use of
FilmOn’s “Teleporter” system, which allowed users to virtually view broadcast content from a
distant location that was not necessarily within the local broadcast geographic region.^517
FilmOn resisted the motion for contempt on the ground that, because the injunction did
not expressly mention or prohibit the mini-antenna/DVR technology and the related Teleporter
service, it could not be said to clearly and unambiguously prohibit its use. The court rejected this
argument, noting that the injunction need not list every potential transmission mechanism that it
barred in order to be clear and unambiguous. Recognizing the speed of technological advance,
the injunction prohibited FilmOn from infringing by any means, and that was sufficiently clear to
encompass FilmOn’s antenna/DVR and Teleporter technology.^518
FilmOn further argued that in light of the Supreme Court’s findings in Aereo, it qualified
as a cable system and was entitled to the benefits and responsibility of the compulsory license
scheme under Section 111 of the Copyright Act. The court rejected this, noting that the Supreme
Court’s statements that Aereo (and, by extension, FilmOn, which used technology identical to
Aereo) was very similar to a cable system were not the same as a judicial finding that Aereo and
(^516) Id. at 1203-04.
(^517) CBS Broadcasting Inc. v. FilmOn.com, Inc., 2014 U.S. Dist. LEXIS 101894 at 1-3, 7 (S.D.N.Y. July 24,
2014). On Sept. 13, 2013, the court found FilmOn in contempt of the injunction by offering a video-on-demand
service that provided subscribers with access to an archive of previously televised programs for streaming on
demand. CBS Broadcasting Inc. v. FilmOn.com, Inc., 2013 U.S. Dist. LEXIS 130612 (S.D.N.Y. Sept. 10,
2013).
(^518) FilmOn, 2014 U.S. Dist. LEXIS 101894 at 9-10.