• by Wendy Davis  @wendyndavis, February 4, 2016

A broad array of entertainment companies and industry groups are asking an appellate court to rule that online video distributor FilmOn isn't entitled to a cable license.

"Awarding FilmOn X a compulsory license would cause manifest harm to the content-creation and dissemination ecosystem," Paramount Pictures, Warner Bros and the Independent Film & Television Alliance argue in a friend-of-the-court brief filed Wednesday with the 9th Circuit Court of Appeals.

The entertainment companies are siding with a group of TV broadcasters in their long-running fight with FilmOn, which wants to stream television programs online. Last year, U.S. District Court Judge George Wu in the Central District of California said that FilmOn was a "cable system," and therefore potentially entitled to a compulsory license to transmit programs.

Paramount and the others say in court papers that granting FilmOn a compulsory license would give the company an unfair advantage over services like Hulu and Netflix, which must negotiate for the right to stream programs online.

"Networks typically require on-demand providers (like FilmOn X) to wait for a specified window before they may disseminate content online," the entertainment companies argue. "Affording FilmOn X a compulsory license would give it a leg up on authorized licensees. It could offer content before any of its competitors."

The National Football League, Major League Baseball and the PGA Tour also say Wu's ruling should be reversed. Those organizations argue in a separate brief filed Wednesday that Wu's decision "radically alters the marketplace" for live sports broadcasts.

"Unlike a Congressionally created compulsory license, the district court’s decision does not establish any of the numerous conditions and safeguards (such as anti-piracy measures or regulatory oversight) necessary to protect the content of the sports organizations and other copyright owners when transmitted over the Internet," the groups say.

They add that Wu's ruling undermines their ability to offer their own digital content, or license it to other companies.

The current fight about whether FilmOn is entitled to a cable license is the latest dispute in a long series of battles between itself and TV broadcasters. In 2010, FilmOn -- owned by billionaire Alki David -- attempted to offer a streaming service similar to the defunct ivi TV, which sought to distribute television programs online. Both companies argued they should be considered "cable systems," and entitled to compulsory licenses.

In 2012, the 2nd Circuit Court of Appeals in New York rejected that argument in a lawsuit involving ivi TV. That court said ivi wasn't a cable system because it didn't limit its streams to specific geographic locales.

FilmOn later re-launched using the same system as the 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 geolocations, 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. The Supreme Court said in its ruling that Aereo's platform was "for all practical purposes a traditional cable system," and that cable systems can't transmit programs without licenses.

After that decision came out, Aereo suspended operations altogether. FilmOn still streams programs in the public domain as well as shows that it licenses.

FilmOn also changed gears in court. Now, it argues that the Supreme Court's decision in the Aereo case means that FilmOn is actually a cable system, and therefore entitled to a compulsory license.

U.S. District Court Judge George Wu in Los Angeles agreed with that argument, writing that the Supreme Court's characterization of the company's technology is "about as close a statement directly in defendants' favor as could be made."

Last week, a coalition of broadcasters asked the 9th Circuit to reverse that decision. FilmOn is expected to file its arguments later this month.