On September 5, 2013, in Fox Television Stations, Inc. v. FilmOn X LLC, the US District Court for the District of Columbia issued an opinion granting the plaintiffs' preliminary injunction against the defendant companies that transmitted the plaintiff television producers' and broadcasters' content to users through internet and mobile device streaming, ruling that these transmissions infringed the plaintiffs' exclusive right of public performance. Notably, the District of Columbia court rejected the US Court of Appeals for the Second Circuit's reasoning in WNET, Thirteen v. Aereo, Inc. (Aereo), in which the Second Circuit had found a substantially identical one-to-one transmission service to be non-infringing.

The plaintiffs, including the four major national broadcast television networks and other television programming distributors and rights holders, produce and license the distribution of copyrighted television programs. The FilmOn X defendants retransmit the plaintiffs' copyrighted over-the-air television broadcasts through internet and mobile streaming. As in Aereo, the defendants' system allowed viewers to use an individual mini digital antenna to watch, and a DVR to record, the defendants' retransmissions of over-the-air television broadcasts. The plaintiffs moved for a preliminary injunction to prohibit these retransmissions, alleging that they infringed the plaintiffs' exclusive public performance rights under Section 106(4) of the Copyright Act, 17 U.S.C. § 106(4).

In its September 5, 2013 opinion and order, the US District Court for the District of Columbia granted the plaintiff broadcasters' request for a preliminary injunction prohibiting the defendants from retransmitting, streaming or otherwise publicly performing or displaying the plaintiffs' over-the-air television content over the internet or through mobile devices.

The defendants had urged the district court to adopt the US Court of Appeals for the Second Circuit's reasoning in Aereo, arguing that their technology was practically and legally indistinguishable from the service the Second Circuit found to be non-infringing. In Aereo, the Second Circuit followed its earlier holding in Cartoon Network, LP v. CSC Holdings, Inc. (Cablevision) in ruling that a service that allowed its users to watch programs received by the user's individual antenna did not infringe the copyright holder's public performance rights because the broadcasts were received only by each individual user's separately assigned antenna.

The D.C. District Court expressly rejected this argument. Citing at length the US District Court for the Central District of California's opinion in Fox Television Systems, Inc. v. BarryDriller Content Systems (Aereokiller), the court ruled that in this case, as in Aereokiller, the defendants' one-to-one antenna architecture did not immunize them from liability for unauthorized public performance. On the contrary, the court reasoned that the plain language and legislative history of Section 101 of the Copyright Act (17 U.S.C. § 101, the "Transmit Clause") defines public performance to include any transmission of a work:

The D.C. District Court further noted that the relevant copy of a retransmitted television program for purposes of a public performance analysis is the original broadcast. The court therefore rejected the defendants' argument that their one-on-one retransmissions were not public performances, reasoning that these multiple broadcasts, although separately transmitted, were generated from the same copy. The court also found that the defendants' operation of a commercial service that retransmits the plaintiffs’ television performances placed them in substantially the same position as cable television companies, which, under the Copyright Act of 1976, must acquire appropriate public performance licenses.

Citing these facts, the court concluded that the plaintiffs were likely to succeed on their claim that the defendants violated their exclusive public performance rights and, finding the plaintiffs to have met all other requirements, granted the plaintiffs’ motion for a preliminary injunction. However, in deference to the Second Circuit's contrary holding in Aereo, the court invoked principles of comity to confine the otherwise national scope of the injunction to outside the geographic boundaries of the Second Circuit.

The US District Court for the District of Columbia's rejection of the Second Circuit's decisions in Aereo and Cablevision adds the courts of the D.C. Circuit to the rift that has been forming between those of the Second and Ninth Circuits concerning whether the streaming of over-the-air television programs over the internet and mobile devices constitutes a public performance. As the ultimate resolution of this issue depends on the proper interpretation of the Copyright Act, it may be necessary for parties to raise the matter before the Supreme Court unless Congress revises the statute to clarify the scope of the exclusive right of public performance.