## Facts

- Broadcast television stations and other copyright owners sued Aereokiller, LLC (operating as “FilmOn X”) for retransmitting over-the-air broadcast programming without authorization.
- FilmOn used arrays of antennas to capture local broadcast signals and streamed the programming over the internet to paying subscribers’ devices.
- The parties did not dispute that FilmOn’s transmissions constituted “public performances” under the Copyright Act, creating infringement liability unless FilmOn qualified for a statutory license.
- FilmOn claimed eligibility for the compulsory license available to “cable systems” under 17 U.S.C. § 111 by paying statutory fees and meeting applicable conditions.
- The U.S. Copyright Office had consistently taken the position that internet-based retransmission services are not eligible for the § 111 compulsory license.

## Issues

1. Whether an internet-based service that captures over-the-air broadcast signals and retransmits them online to subscribers qualifies as a “cable system” under 17 U.S.C. § 111.
2. Whether deference to the Copyright Office’s interpretation of § 111 supports excluding internet retransmission services from the compulsory license.

## Decision

- The Ninth Circuit reversed the district court’s partial summary judgment for FilmOn.
- The court held that internet-based retransmission services like FilmOn are not “cable systems” eligible for the § 111 compulsory license.
- The court found § 111 ambiguous on whether it covers internet retransmission services and deferred to the Copyright Office’s contrary interpretation as persuasive and reasonable.
- FilmOn could not rely on § 111 to avoid infringement liability for unlicensed internet retransmissions of broadcast programming.

## Legal Principles

- A service that retransmits broadcast programming over the internet to paying subscribers does not qualify as a “cable system” entitled to a compulsory license under 17 U.S.C. § 111.
- When § 111 is ambiguous as applied to a new retransmission technology, courts may give weight to the Copyright Office’s longstanding, consistent, and reasonable interpretation administering the statutory license.
- Treatment of a service as “cable-like” for purposes of public-performance liability does not entail entitlement to the statutory benefits provided to cable systems under § 111.

## Conclusion

The Ninth Circuit ruled that FilmOn’s internet retransmission model falls outside § 111’s “cable system” compulsory license, and that the Copyright Office’s interpretation excluding internet retransmitters should control, leaving FilmOn without statutory licensing protection for its unconsented retransmissions.


Fox Television Stations, Inc. v. Aereokiller, LLC, 851 F.3d 1002 (9th Cir. 2017)