2ND UPDATE, 12:30 PM: The contempt of court ruling leveled against FilmOn on Tuesday is quickly turning into a battle outside the courts as well. Today plaintiff CBS told me that it did not withhold any licensing agreement from FilmOn from the court because it never received one – despite what the streaming service’s lawyer says. Last night, after I reported on the contempt of court ruling against FilmOn and its CEO Alki David, attorney Ryan Baker contacted me to say he had given the document requested by the court to CBS counsel on August 20 but the network never made that known to the federal court. Baker alleged that such a failure of notification led Judge Naomi Reice Buchwald to make the contempt of court ruling on Tuesday. CBS clearly begs to differ. Read their statement here:
No wonder this lawyer’s client was held in contempt. The court held a complete hearing on this subject and no licensing agreement was produced by either this lawyer or his client. Of course no such agreement exists. Would not this lawyer produce such an agreement to the court if it did? The client failed to produce such an agreement, the lawyer failed to produce such an agreement and the court pointed this out in its opinion (see, pages 20-21 of the opinion). CBS has never received or for that matter even seen such a so-called executed licensing agreement. Talk of diversionary tactics. This is sour grapes so strong that the fermentation has already begun. They lost, period.
1ST UPDATE: 11:25 PM: Today’s contempt of court order against streaming service FilmOn and its CEO Alki David was based on missing information, the company’s lawyer Ryan Baker says. In a statement sent to me this evening, Baker says CBS’ legal reps were given the VOD licensing agreement requested by the federal court, but that document was not passed on to the judge. Here’s his full statement:
The court’s ruling holding FilmOn and Mr. David in contempt is based on the contention that they failed to produce licensing agreements to plaintiffs on or before August 21, 2013, pursuant to the court’s order. But a licensing agreement was produced by me on August 20, 2013. I emailed that agreement to counsel for CBS, who confirmed receipt. I requested in the accompanying email that counsel for CBS contact me to discuss that agreement. I was not contacted in response to that request. Counsel for CBS failed to notify the court of the document it obtained.
FilmOn and Mr. David have always conducted themselves in good faith, and in this instance, they complied with the court’s order to provide evidence of their right to provide FilmOn users with video-on-demand content.
FilmOn and Mr. David are evaluating their next move, but certainly intend to take steps to modify any determination that they are in contempt of a court order.
PREVIOUSLY, 5:48 PM: It has not been the best of weeks for FilmOn founder Alki David and his company. On September 5, a federal court in D.C. gave broadcasters an almost nationwide injunction against the streaming service. Today, a NYC-based judge agreed with a July 29 request from CBS and ordered that David’s free-TV-over-the-Internet service pay up what it still owes on a $1.6 million copyright infringement and injunction settlement reached last July. As well, the judge ordered that David and FilmOn cease violating portions of that agreement. Additionally, with no third party evidence produced to confirm that he has the rights to the material, David is to halt FilmOn’s VOD service. Perhaps as importantly, the judge found “FilmOn and David in contempt for violating the Stipulated Consent Judgment and Permanent Injunction,” wrote U.S. District Judge Naomi Reice Buchwald Tuesday (read it here).
“FilmOn and David are hereby ordered to forthwith deliver to plaintiffs’ counsel the sum of $1,350,000, plus interest at the statutory rate, the costs of collection, and reasonable attorneys’ fees,” the judge also wrote today. David said in early August 2012 that CBS “renegged” on the agreement by releasing it in a way designed to embarrass him. Not according to Buchwald. The judge also ruled that the company and the billionaire digital media entrepreneur had to take down, as agreed in the July 2012 settlement, sites like www.cbsyousuck.com and remove other online material slagging and attacking the broadcaster. Sure thing your Honor, but the parties in this case being who they are, expect more twists and legal turns before the dust settles on this one.
For a bit of background, CBS filed its motion on this latest FilmOn legal squirmish on July 2. David and his company replied on July 15 and the network responded at the end of that month. Arguments were heard at a hearing on August 15 in front on Judge Buchwald and now we have today’s 23-page order. Peter Zimroth, Hadrian R. Katz, Robert Alan Garrett, and C. Scott Morrow of NYC and D.C. offices of Arnold & Porter LLP are representing CBS. FilmOn is represented by Ryan G. Baker and Jaime Marquart of LA firm Baker Marquart LLP.