Shutting down controversial services pre-trial does not serve the public interest.
PK just filed a friend of the court brief with the District of Columbia Court of Appeals, arguing that the District Court below should not have granted the broadcaster’s request to shut down FilmOn, an Internet video service, prior to trial. We were joined on the brief by our friends at EFF and Engine Advocacy.
Let’s get the weird stuff out of the way. PK has filed amicus briefs supporting Aereo, and for a while, FilmOn called itself “Aereokiller”–at least that’s what it called its Aereo-like service. For a while it was also using the name “Barry Driller.” The man behind FilmOn, Alki David, apparently has some kind beef with Barry Diller, the famous media mogul and Aereo investor. But PK is interested in the legal issues this case raises, not in whatever drama is going on with the names. In particular, we’re interested in the standard for preliminary injunctions in copyright cases–more on that below. The Aereo-like service is now called FilmOn Air X, and sometimes just FilmOn X, but to keep things simply I’ll just refer to it here as “FilmOn.”
According to FilmOn’s submissions, this service works just like Aereo does: each viewer gets an individual antenna, and that antenna streams a private transmission of over-the-air broadcast programming to that individual viewer. If that’s the case, then FilmOn works more like a private antenna than a cable TV service, and doesn’t create a “public performance” of any programming, which means it doesn’t need a license. Just like you don’t need a license to put an antenna on your roof to receive free broadcast TV, you don’t need one to rent an antenna, either. The broadcast industry, of course, disagrees, and that’s what this case is about.
In this brief, though, we didn’t spend all of our word count on the complexities of the law surrounding public performances. That’s because the example set by the District Court, which ordered FilmOn to shutter its service before there was even a trial (a “preliminary injunction“, in other words) is bad for innovators of all kinds, and has implications that go far beyond the admittedly specialized fact pattern of an Internet-based broadcast TV antenna rental service.
When deciding whether to grant a pre-trial injunction, a court is supposed to weigh four different factors: Whether there would be irreparable injury if it doesn’t grant the injunction, the balance of the harms (whether granting an injunction would create more harm, for the defendant company and its customers, than not granting one would create for the plaintiff), the “likelihood of success on the merits” (the actual legal issue at stake), and the public interest. Courts have a bad habit of skipping some of these factors, but higher courts have made it repeatedly clear that they can’t. Pre-trial injunctions are a form of extraordinary relief, and even if the plaintiff shows that it’s almost certain to win at trial, it should have to wait until it actually does to get its injunction if the other three factors weigh against it. In this case, as has happened before, the District Court simply did not give adequate, independent consideration to each of the four factors. This alone merits reversal of its decision.
This legal issue should concern everyone. It’s fundamental to our legal system that defendants get their day in court. We allow things like preliminary injunctions to account for unusual circumstances: For example, when it’s clear that a defendant is not serving the public interest in any way, is breaking the law, and is causing harms to the plaintiff that it will never be able to pay back through damages. In these extraordinary situations, judges have the discretion to grant early injunctions. Lawyers being what they are, asking for such an injunction is a matter of course. That doesn’t mean that judges have to grant them, especially not when doing so goes against Supreme Court guidance. Because some judges still do grant these injunctions routinely, this makes doing anything with technology that might touch on copyrighted content all the more risky. You don’t just risk getting sued. You risk getting shut down, and losing revenue, before you can even fully make your case. Users lose access to services they might depend on, even if they are ultimately found to be perfectly legal, all because some clever lawyers figured out a way to short-circuit the justice system.
To focus on one of the factors the District Court failed to give proper weight to: the public interest. This one should be easy. The FCC, Congress, and the Supreme Court have all acknowledged that there’s a public interest in enhancing access to free broadcast television, and it’s clear that broadcasters, in exchange for being given billions of dollars worth of free spectrum, have an obligation to use that spectrum to make a free, easily accessible service available to the public. In recent years, though, broadcasters have been focused more on acting like private cable channels, abusing the law and demanding high carriage fees from cable and satellite systems, while holding on to their spectrum and all the regulatory perks that comes with being a broadcaster. But given that the Supreme Court has founding that increasing access to broadcast programming promotes the public interest, the District Court should have found that an Internet antenna rental service does the same.
On this point, the usual objection from people sympathetic to the plaintiffs is, “But FilmOn is breaking the law! It can’t be in the public interest to break the law!” First, that’s quite an assumption. A few courts have held what Aereo is doing is lawful, and if FilmOn works the same way, it is, too. (Just yesterday, Aereo asked the Supreme Court to grant the broadcasters’ request to hear the case.) But, maybe more importantly in a preliminary injunction context, is that whether or not there has been any lawbreaking is yet to be determined. This is a pre-trial proceeding, and all the facts aren’t out yet, and the briefing from the parties has not been exactly on point. That’s why courts are supposed to consider the public interest factor separately from the merits factor, and weigh it as carefully as the other factors. That’s what the court failed to do here, relying on an overruled case that claims that the public interest factor is subordinate to the merits factor.
There’s plenty else wrong with the District Court’s opinion. It takes at face value imaginary “harms” like “loss of control” and fails to give proper value to the public interest in promoting competition and innovation, for example. You can read our brief for this. The takeaway from this case is really quite simple–when district courts ignore Supreme Court precedent and issue hasty preliminary injunction rulings, bad things happen. The DC Circuit should reconsider the District Court’s too-hasty grant of a preliminary injunction.