Every time I see Internet television streaming service FilmOn X CEO Alki David quoted, he comes across as crazy. But speaking at a New York Law School forum on the future of television over Skype from Greece at 4 a.m. in the morning, he seemed no crazier than any other intelligent eccentric unafraid to speak his mind.
David said he would strongly prefer the U.S. Supreme Court or an intermediate appellate court to settle the copyright-law disputes triggered by his company’s and competitor Aereo’s new businesses.
"I've personally found much more joy in a higher court simply because the district court judges seem to be totally lunatic,” David said. “I don't know how one judge can make technical decisions and be completely technically inept. I don't understand how one judge can make decisions without having a hearing.” David’s firm is subject to a nationwide injunction issued by U.S. District Judge Rosemary M. Collyer of the District of Columbia District except for within the Second Circuit.
The issue of whether Internet streaming of free broadcast TV programming violates the copyright holders’ exclusive rights to public performance “really needs the grouping of brains and the grouping of intelligence to sit down and go through this and ultimately come to a decision. I will be ultimately happy for it to go to as high of a court as possible," David said.
While David argues that broadcasting programming is a public good because it’s delivered over the public broadcast airwaves, David also said that he would happily pay retransmission fees and “we’re not here to take market away from anybody.” There are entrenched interests in broadcasters against changing the status quo, including from legal departments who would like to fight against FilmOn X as much as possible, he added.
FilmOn X’s leader rejected the argument that his company is distributing copyrighted content without paying for it: "The content that is being distributed on our P2P networks is content that is freely available to the public,” David said. “It's not as if we're retransmitting DVR boxes with the NFL network or with Discovery."
In a panel discussion prior to David’s remarks, attorney Jonathan Band, with the law firm policybandwidth and who is in favor of FilmOn X’s and Aereo’s positions, said it’s an important fact both Aereo and FilmOn X have an array of antennas. One massive antenna distributing broadcast TV retransmissions to viewers might violate coprygith law, Band argued, but “on the other hand by having 10,000 antennas you have this one-to-one relation” of one antenna to one user.
Mary Ann Zimmer, of the Law Office of Mary Ann Zimmer and who is on the side of broadcasters, said in her opinion the legislative history of the Copyright Act shows that Congress did its best to protect copyright holders no matter what devices or methods were developed to reproduce their intellectual property.
“That was Congress' intent to broadly cover any kind of method” of transmitting the performance of broadcasting programming, Zimmerman said.
Aereo and FilmOn X are pursuing a “weird little loophole” to try to get around Congress’ intent, Zimmer argued.
The only reason Aereo and FilmOn X are “available business options is because they’re not paying for the content. It’s the greatest model,” said Howard Homonoff, of Homonoff Media Group, LLC, and who favors the broadcasters’ position.
While Zimmerman argued that FilmOn X and Aereo are interfering in the ability of broadcasters to develop markets for Internet distribution, Band said that the firms are filling a market niche for television consumers who want their programming unbundled and to have “the ability to select exactly what they want.”