FilmOn Founder Plans to Sue CNET for Distributing Piracy Software

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FilmOn founder Alki David charges CNET, a subsidiary of CBS, with the distribution of "illegal software" that allows users to circumvent DRM technology in violation of the Copyright Act as well as other software that lets users illegally stream and download copyrighted material. Countersuit is in response to claims by CBS and other TV broadcasters that FilmOn illegally retransmits copyrighted programming.

In one of the more bizarre twists of copyright infringement lawsuits, FilmOn founder Alki David, accused by CBS of illegally transmitting its TV station broadcasts, said he plans to countersue because its subsidiary, CNET, engages in the "illegal distribution of DRM [digital rights management] removal software as well as the illegal distribution of file sharing software with malicious intent to infringe on copyright."

At first glance the lawsuit seems laughable, but David makes a rather convincing argument.

"CNET, a subsidiary of CBS Interactive, which is a division of CBS, has for several years now been distributing BitTorrent software online," David says in an online video posted on YouTube last week. "That's right piracy. CBS through its subsidiary CNET has distributed over 1 billion illegal file-sharing softwares as well as DRM cracking softwares."

FilmOn.com allows subscribers who pay $9.99 a month to access live HD TV feeds online. TV broadcasters claim he's retransmitting copyrighted programming without their consent, and last month successfully convinced a judge to issue a temporary injunction.

Although the Copyright Act requires broadcasters to license retransmission broadcasts of their content to cable systems and broadcast satellites, the networks argue that Section 111 of the Copyright Act doesn't apply to streaming internet services. not an infringement of copyright

This where David seems to make a rather confusing argument. On the one hand he says that he is a cable system and eligible for a compulsory license, but on the other he says that he is not and therefore his secondary transmission is exempt from the Copyright Act.

"Mr. David is clearly not feeling very good about his prospects in the court system. He is hardly an expert on intellectual property rights," CBS said in response to David's YouTube video. "CNET respects such rights, and meanwhile the court has issued a temporary restraining order against Mr. David and his company. We continue to think that the court is the best venue to determine the outcome of this case, one in which unauthorized use of our content has been distributed illegally."

There's no mention of when David plans to countersue, but he does make an interesting counterclaim about CNET, and therefore CBS, engaging in illegal behavior of its own. For the Copyright Act expressly forbids the distribution of DRM circumvention software and CNET clearly makes this type available on its site.

From the Copyright Act:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that — (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

© is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

David also highlights the plethora of software on CNET that allows users to stream and watch copyrighted content in much the same way that FilmOn does, and yet remain accessible to the public.

It is an interesting bout of hypocrisy. One has to be either for illegal streaming or against it, especially if you plan on suing people for daring to do the latter, and nice to see David point this out.

The counterclaim may not help lift the injunction on FilmOn and prevent it from being shutdown, but at least he's showing the world CBS' double standard when it comes to copyright infringement.

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