Another month, another salvo in the on-going multi-pronged legal trench warfare between the broadcasters and FilmOn founder Alki David. This time, it’s CBS who is back in court against the billionaire digital media entrepreneur. Today the network asked U.S. District Court in New York to enter an order (read it here) to ensure that David holds up his part of a $1.6 million copyright infringement settlement reached last year. Specifically, CBS is invoking Section 5.3 of the agreement. That was supposed to get David to shut down sites like www.cbsyousuck.com and remove other online material slagging and attacking the broadcaster. This came out of a sidebar suit that David instigated against CBS Interactive and CNET Networks Inc over downloading. The late July 2012 agreement that was supposed to have sorted all this out also bars FilmOn from streaming broadcast network programming, and requires him to pay major providers such as CBS, ABC, Fox, and NBC. The agreement last year arose from the broadcasters suing David in 2010 over use of their signals and content and then him going after CBS in federal court in California on behalf of a coalition of musicians against its use of peer-to-peer file sharing programs. “Despite this express obligation, Mr. David has refused to take down material he posted on the Internet supporting, promoting, and encouraging participation in the California Action. Mr. David argues that he has no obligation to remove materials posted before he signed the Agreement because removing it would be unduly burdensome and violate his First Amendment rights. As explained below, however, removal of this material is required by the Agreement, imposes virtually no burden, and does not impinge upon any First Amendment rights,” the five page filing by CBS’ lawyers says.
The filing also notes that despite David’s contention that he only agreed to material posted before the 2012 agreement, he could shut down the “inflammatory anti-CBS material” in “a matter of minutes” if he wanted to. CBS also charges that David has violated last year’s settlement because he has offered no evidence that he isn’t still providing the funds for the California-based suit against the company’s Interactive department and CNET, even though he was obligated to do so under the settlement and his reps pledged to do so in a May 2, 2013 conference call. Peter Zimroth, Hadrian R. Katz, Robert Alan Garrett, and C. Scott Morrow of NYC firm Arnold & Porter LLP are representing CBS. FilmOn is represented by Ryan G. Baker and Jaime Marquart of Baker Marquart LLP.