Fox Television Stations, Inc. v. Filmon X LLC (150 F. Supp. 3d 1, 2015)

OPINION

ROSEMARY M. COLLYER, United States District Judge

This ease involves a clash between two important national policies and interests. On the one hand, there is the need to protect and reward copyright owners for creating valuable intellectual property— here, original television programming. On the other hand, it is important to promote competition and ensure broad public access to'diverse television programming. When enacting the Copyright Act of 1976, specifically the compulsory license regime prescribed in 17 U.S.C. § I'll, Congress struck a delicate balance between these two important interests. It is up to this Court to interpret and apply that balance to determine whether, a service that' engages in Internet retransmission of over-the-air television programming violates the Copyright Act.

Defendant FiimOn X, LLC (formerly known as Aereokiller LLC) operates a service that captures the signals of multiple television channels that are . broadcast over-the-air and streams them over , the Internet to the public. FiimOn X assigns an individual user the content stream from one of thousands of minute, dime-sized antennas that it operates in major metropolitan areas, including Washington, D.C. As a result, this service allows viewers to watch over-the-air television programming on any computer or digital device. Plaintiffs, a group of television broadcasters and programmers that own much of the streamed content, sued FilmOn X, its affiliates, and CEO Alkiviades David (collectively Defendants) for retransmitting their copyrighted works without a license. See Second Am. Compl. [Dkt. '66]. Plaintiffs claim that Defendants have violated their intellectual property rights, particularly the exclusive right to public performance of their copyrighted programming. See id. ¶¶ 39-47.

On September 5, 2013, this Court held that FilmOn X’s conduct likely violated Plaintiffs’ exclusive rights and preliminarily enjoined , FilmOn X and its affiliates from streaming Plaintiffs’ broadcast programming without authorization. See Fox Television Stations, Inc. v. FilmOn X LLC, 966 F.Supp.2d 30 (D.D.C.2013) (2013 D.C. Prelim. Inj.), [Dkt. 34]. In a separate case, the Supreme Court ultimately validated this Court’s conclusion that the Copyright Act forbids the unauthorized retransmissions of copyrighted programs .over the Internet even when such retransmissions rely on the use of separate antennas and data, streams. Am. Broad. Cos. v. Aereo, Inc., — U.S. -, 134 S.Ct. 2498, 2511, 189 L.Ed.2d 476 (2014) (Aereo III). In doing so, the Supreme Court drew an analogy between Internet-based retran-smitters and the community antenna .television (CATV) systems that Congress brought within the- scope. of the Transmit Clause, 17 U.S.C. § 101, -in *• the 1976 amendments to the Copyright Act. Id. at 2507. Aereo III described the practices of Internet-based retransmission services as highly similar to those of CATV systems (precursors of modern cable systems). Id. at 2511. As a result, it held that retransmitting copyrighted programming over the Internet constitutes a 'public performance within the meaning of the Transmit Clause. Id.

Although Defendants had expressly disclaimed the argument that they are “cable systems” within the meaning of § 111, they now rely on the Supreme Court’s analogy in Aereo III to amend their answers. Compare David Decl. in Supp. of Opp’n to Mot. for Prelim. Inj. [Dkt. 31-1] (Prelim, Inj. David Decl.), Ex. B at 13 (CEO David stating that FilmOn X “is not a'Cable system”) with Answers to Am. Cbmpl. [Dkts. 69 and 70]'(raising affirmative defense that Defendants are entitled to compulsory license under § 111(c)). Defendants now argue that they are entitled to a § 111 compulsory license to retransmit Plaintiffs’ broadcast programming as a cable system. Id. at 8-9. Plaintiffs move for summary judgment, arguing that Defendants’ nearly-simultaneous and time-delayed retransmission' services violate the Copyright Act and that Defendants are not entitled to a §111 license. Pis.’ Mot. for Partial Summ. J. [Dkt...81] (Pis.’ Mot.). Defendants cross-move for summary judgment on their counterclaim that they are entitled to such statutory license and -they also contend that it is premature to decide whether Plaintiffs’ exclusive rights of public performance were actually infringed in the past. Defs.’ Mot. for Summ. J. [Dkt. 97] (Defs.’ Mot.).

Upon consideration of the parties’ briefs and for the reasons stated in this Opinion, this Court holds that Defendants are not entitled to a § 111 license. Section 111(f)(3) defines cable systems as physical facilities that both receive and retransmit broadcast signals to paying subscribers ..through wires, cables, microwave, and other types of communication channels. FilmOn X is not such a facility because it relies on the Internet, which is neither a tangible nor physical entity, to retransmit , the broadcast signals to its paying subscribers. The Court also holds that FilmOn X infringed Plaintiffs’ exclusive right of public performance in violation of the Copyright Act. As such, this Court will grant Plaintiffs’ motion for summary judgment in part and deny Defendants’ motion.

I. FACTS

A. Prior Litigation

-In October 2010, a group of broadcasters and television networks, including some of the Plaintiffs, sued Defendant Fil-mOn.com, Inc. for copyright infringement in the U.S. District Court for the Southern District of New York. See Pis.’ Rfeq. for Jud. Notice [Dkt. 90] (“Pis.’ RJN”), Ex. A (Mot. for TRO). Defendant FilmOn.com, Inc., which essentially streamed over the Internet the signals of various broadcast television stations on a live basis, argued that it was a cable system entitled to a § 111 license. Id., Ex. B (FilmOn Opp’n to Mot. for TRO) at 5. The district court (Buchwald, J.) disagreed and granted a temporary restraining order enjoining Fil-mOn.com, Inc. from streaming copyrighted programming. Id., Ex. C. (TRO). In a companion case, Judge Buchwald also held that an Internet-based retransmission service was not a “cable system” and, thus, was not entitled to a § 111 license. WPIX, Inc. v. ivi, Inc., 765 F.Supp.2d 594, 617 (S.D.N.Y.2011) (ivi I), aff'd 691 F.3d 275 (2d Cir.2012) (ivi II), cert. denied, — U.S. ——, 133 S.Ct. 1585, 185 L.Ed.2d 607 (2013). Shortly before the Second Circuit’s decision in ivi II, Judge Buchwald entered a Stipulated Consent Judgment and Permanent Injunction .(“2012 Injunction”) binding FilmOn.com, Inc. and its affiliates from streaming Plaintiffs’ copyrighted programming without authorization. Pls.! RJN, Ex. E. (2012 Injunction).

In August 2012, Mr. David launched a new Internet-based retransmission service called FilmOn X. David Dep. [Dkt. 93-3], Ex. 1 at 58:3-21. Like FilmOn.com, Inc., this new service streamed broadcast television signals over the Internet without payment or authorization. Unlike the prior system, FilmOn X relied on a mini-antenna/data video recorder technology - that provided viewers with both time-delayed and nearly simultaneous retransmissions of copyrighted content. David Deck in Supp. of Defs.’ Mot. for Summ. J. [Dkt. Ill] (Siimm. J. David Deck) ¶¶ 12, 16. Unlike FilmOn.com, Inc., FilmOn X explicitly disclaimed that it was a cable system entitled to a compulsory license. Prelim. Inj. David Deck, Ex. B, at 13. In fact, FilmOn X’s service was specifically designed to ayoid copyright liability under then-applicable Second Circuit precedent in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 137 (2d Cir. 2008) (Cablevisxon) (holding that a “Remote Storage DVR” system that makes “transmissions to one 'subscriber using a copy made by that subscriber” does not violate the Transmit Clause of the Copyright Act). ■ Summ. J.- David Deck ¶-12.:

On July 22, 2012, the Southern District of New York (Nathan, J.) applied Cablevision to hold that the use of a separate small antenna and separate data stream” for each subscriber did not violate the Copyright Act. Am. Broad. Cos. v. Aereo, Inc., 874 F.Supp.2d 373 (S.D.N.Y.2012) (Aereo I). Judge Nathan found that Aer-eo — an established competitor' to FilmOn X that offered a virtually identical service — made only nonpublic performances and, thus, avoided Transmit Clause liability. Id. at 385. Since FilmOn X’s new ’service replicated Aereo’s technology and complied with Second Circuit precedent, Plaintiffs did not ask Judge Buchwald to find Defendants in contempt for violating the 2012 Injunction, Instead, they filed a copyright infringement action against Fil-mOn X in ,the. U.S. District Court for the Central District. of California. See Fox Television Stations, Inc. v. BarryDriller Content Sys., PLC, 915 F.Supp.2d 1138 (C.D.Cal.2012). The California district court (Wu, J.) disagreed .with Aereo I and Cablevision and preliminarily enjoined Fil-mOn X’s unauthorized streaming of copyrighted content, but only in the Ninth Circuit. Id. at 1151. .

Shortly after Judge Wu enjoined.Defendants, the Second Circuit affirmed Judge Nathan’s' decision in Aereo I. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir.2013) (Aereo-II). Facing a jurisdictional split ’and still hoping to obtain a nationwide injunction'against' FilmOn X’s service, Plaintiffs filed the instant copyright action against' Defendants. In 2013, this Court preliminarily enjoined FilmOn X, as well as its affiliates and officers, from streaming unauthorized material throughout .the United States, with the exception of .the geographic boundaries of the U.S. Court of Appeals for the Second Circuit. 2013 D.C. Prelim.. Inj. [Dkt. 34] at 2.

■ On June 25, 2014, the Supreme Court issued its decision in Aereo III, reversing the Second Circuit’s decision, resolving the split, and validating this Court’s reasoning. 134 S.Ct. at 2511. The Supreme Court specifically noted that' Aereo’s retransmission activities weré substantially similar to those of the' cable systems that Congress subjected to Transmit Clause liability in the Copyright Act of 1976. Id. at 2506-07. Therefore, Aereo III made clear that an Internet-based retransmission service, such as the one in the instant case, performs publicly within the meaning of the Transmit Clause.

In the wake of Aereo III, Defendants, like Aereo on remand, switched their theories and amended their answers to articulate a new position — namely, that they are entitled to a.§ 111 compulsory license to retransmit Plaintiffs’ television programming. Answers , to Am. Compl. [Dkts. 69 and 70]. In New York, they argued that the Supreme Court’s analogy to cable systems in Aereo III meant that the Copyright Act authorized the streaming of copyrighted content so long as the retransmission service complied with the requirements listed in § 111. See Pis.’ RJN, Ex. F. at . 9-10 (CBS Broad. Inc. v. FilmOn. com, Inc., No. 10-cv-7532, 2014 WL 3702568 (S.D.N.Y. July 24, 2014)). Relying on the Second Circuit’s ivi //.decision, Judge Buchwald rejected this new argument and found FilmOn.com, Inc. in contempt of the, 2012 New York Injunction. See id. at 9-17. Similarly, Judge- Nathan rejected Aereo’s argument on remand and preliminarily enjoined it from streaming copyrighted television programming. Am. Broad. Cos. v. Aereo, Inc., No. 12-cv-1540, 2014 WL 5393867, at *3 (S.D.N.Y. Oct. 23, 2014) (Aereo IV).

The parties filed cross-motions for summary judgment in the California action before Judge Wu as to whether Defendants are entitled to a § 111 license to retransmit Plaintiffs’ broadcasts without infringing their copyrights. On July 24, 2015, Judge Wu found that FilmOn X’s service qualifies as a “cable system” entitled to a § 111 compulsory license and granted summary judgment in favor of Defendants. Fox Television Stations, Inc. v. Aereokiller, 115 F.Supp.3d 1152, 2015 WL 4477797 (C.D.Cal. July 24, 2015) (“2015 California decision”). Judge Wu, however, maintained the existing preliminary injunction against Defendants because of a split in authority.concerning a close legal issue and because Defendants “have not yet been able to timely or consistently comply with the procedures attendant to a § 111 license.” Id. at 1154, at *1. Instead, that court. authorized an immediate appeal of this issue to the Ninth Circuit pursuant to-Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292(b); Id. at 1170-71, at *15. On August 3, 2015, Plaintiffs filed a petition for permission to appeal Judge Wu’s Summary Judgment Order, which the Ninth Circuit granted on September 16, 2015. Status Report [Dkt. 216] in Case No. 12-6921. Consequently, the appeal before the Ninth Circuit is pending.

In this suit, Plaintiffs note that Fil-mOn.com, Inc. already litigated its § 111 defense unsuccessfully in the New York action. Pls.’ Mem. in Supp. for Summ. J. [Dkt. 92-1] (Pls.’ Mem.) at 9-10. Plaintiffs contend the doctrine, of res judicata precludes FilmOn X and. its co-defendants from re-litigating the same issue. Id. Even if res judicata does not apply, Plaintiffs ask this Court to adopt the reasoning in ivi II and Aereo IV»and defer to the Copyright Office’s longstanding position that § 111 - does not apply to .Internet-based retransmission services. Id. at 12-20. Defendants argue that this Court should reject-the Copyright Office’s interpretation of § 111 and adopt the reasoning in Judge Wu’s recent California decision. Defs.’ Mem. in Supp. for Summ j. Dkt. (Defs.’ Mem.) at 14-23; Defs,’ Suppl. Mem. in Opp’n to Pis.’ Mot. for Summ. J. [Dkt. 119] (Defs.’ Suppl. Mem.). •

B; Broadcast Programming and Fil-mOn X’s Service

Plaintiffs own copyrights to certain local news broadcasts and nationally-broadcast television programs. Local television stations broadcast the programming' over the public airwaves subject to the rules of the Federal Communications Commission (FCC). Once these signals are broadcast “over-the-air,” cable systems, satellite services, and other multichannel video programming distributors (MVPDs) retransmit the signals to the public and pay-specified amounts in order to do so.

FilmOn X operated a website that combined the functions of a television and a digital video recorder (DVR). Through'this website, viewers could access original and licensed content, as well as over-the-air broadcast programming. In August 2012, FilmOn X launched its service in Los An-geles and then expanded to various cities across the United States, including Washington, D.C. In order to retransmit broadcast programming over the Internet, Fil-mOn X used a remote mini-antenna/DVR technology. As part of the technology, Fil-mOn X used one master antenna located on the roof of a commercial data center. Its centers were physical facilities across the country, which contained the necessary electronic equipment to capture, store, and retransmit broadcast programming. The master antenna transmitted signals to an antenna box and mini-antennas, in turn, captured the amplified signals. [Redacted]

Whenever a viewer wished to access a program being broadcast, the viewer would go to FilmOn X’s website and select the show from a list of supposed local programming. [Redacted] Ás a result, no single antenna was used by more than one viewer at the same time. Once the mini-antenna received the signal, the data of the selected program was transmitted to the antenna router and then to the video encoder. The encoder stored the data on Fil-mOn X’s hard drive in a “unique directory” created, for 'the specific viewer. The encoder converted the signals into a viewable format arid then streamed the data over the Internet to FilmOn X’s website through a distribution endpoint and hence to the viewer. The data in the “unique directory” was only deleted after the viewer finished watching the program or selected a different program to watch.

Through this technology, the viewer could watch live television on a digital device through FilmOn X’s nearly simultaneous retransmission of the selected program; the viewer could also select a program to watch at a later time. In the past, FilmOn X charged for both monthly and annual local channel packages. Paying subscribers could watch live television in high definition (HD) and select shows for later viewing. FilmOn X would occasionally offer free trials of [¶] television. FilmOn X also offered viewers live standard-television for free. In addition, FilmOn X modified' the broadcast program in various ways, such as inserting its logo during the retransmission, omitting closed captioning, and playing a short ten to thirty-second video advertisement prior to the program’s streaming.

C. FilmOn X’s Efforts to Operate as a Cable System

FilmOn X has recently modified its service in an effort to bring it into compliance with § 111 requirements; it has also expressed that it is ready to recommence retransmissions as a cable systém. Summ. J. David Decl. ¶ 28; Meldal Decl.' ¶¶ 19-52. FilmOn X specifies that its users will only be able to watch broadcast programs if they purchase local channel subscription packages, which will be limited to those television channels available in a designated market area. Meldal Decl. ¶ 35. FilmOn X has developed a geolocation system to deny access to broadcast programming unless the viewer’s digital device is located within the original broadcast’s market area at the time of the retransmission. Id. ¶¶ 19-52; see also Summ. J. David Decl. ¶ 33 [Redacted] Finally. FilmOn X explains that it intends to retransmit over-the-air broadcasts with closed captioning and without its logo. Summ J. David Decl. ¶ 36-37.

[Redacted]

In addition to modifying its service, Fil-mOn X has attempted to comply with § 111 requirements by making past royalty payments and filing Statements of Account with the Copyright Office for each of the six-month reporting periods since July 1, 2012. In a July 2014 letter, the Copyright Office informed FilmOn X that it does not consider Internet-based retransmission systems to be'§ 111 cable systems. App’x of Copyright Office [Dkt. 91], Ex. 1 (July 23, 2014 Copyright Office Letter) at 1-2 (footnotes omitted). Nonetheless, the Copyright Office explained that given that “the question of eligibility of [I]ntemet-based retransmission services for the Section 111 license appears to have been raised again before the courts,” the Office would accept FilniOn X’s documentation on a “provisional basis.” Id.

II. LEGAL STANDARD

- Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is . properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that parry’s case, and on which that party will bear the burden of proof at trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Armstrong v. Archuleta, 77 F.Supp.3d 9, 18 (D.D.C.2014). In ruling on a motion for summary judgment, the- court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as. true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

When' evaluating cross-motions for summary judgment, each motion is reviewed “separately on its own- merits to determine whether [any] of the parties deserves judgment as a matter of law.” Family Trust of Mass., Inc. v. United States, 892 F.Supp.2d 149, 154 (D.D.C. 2012) (citation and internal quotation marks omitted). Neither party is deemed to “concede the factual assertions of the opposing motion.” Competitive Enter. Inst. Wash. Bureau, Inc. v. Dep’t of Justice, 469 F.3d 126, 129 (D.C.Cir.2006) (citation omitted). -“[T]he court shall grant- summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Am. Ins. Ass’n v. HUD, 74 F.Supp.3d 30, 36 (D.D.C.2014) (internal quotation marks and citation omitted). A genuine issue exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

III. ANALYSIS'

A. The Copyright Act of 1976

Copyright law protects copyright owners from the infringement of any of their six exclusive rights under § 106. See 2013 D.C. Preliminary Injunction, 966 F.Supp.2d at 43. One of the'se exclusive rights is the owners’ right of exclusive performance. 17 U.S.C. § 106(4). Section 106(4) provides that “the owner of copyright ... has the exclusive right ... [,] in the case of ... motion pictures and other audiovisual works, to perform the copyrighted work publicly.” Id.’, see also EchoStar Satellite LLC v. FCC, 457 F.3d 31, 33 (D.C.Cir.2006) (stating that broadcasters “generally [have] ‘exclusive rights’ ... to authorize the public display of [their] copyrighted content, including the retransmission of [their] broadcast signal[s]”).

Under the Copyright Act of 1909, CATF retransmissions of over-the-air signals did not .constitute public performances and, thus, did not infringe the owners’ exclusive right of public performance. See Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 401, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968); Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394, 408-409, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974)., Congress disagreed with the Supreme Court decisions in Fortnightly and Teleprompter and enacted the Copyright Act of 19,76, Pub. L. 94-553, 90 Stat. 2541, codified as amended at 17 U.S.C. § 101 et seq., to bring tb,e activities of cable systems,within the Act’s scope. Aereo III, 134 S.Ct. at 2505 (citing H.R. Rep. No. 94-1476 at 86-87 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5703 (1976 H.R. Rep.)). In doing so, Congress responded to “significant changes in technology [that] affected .the operation of the copyright law,” such as the advent of cable television. 1976 H.R. Rep. at 1, 86-87 (stating that .the Copyright Act of 1976 was enacted because “[p]ursuant to two Supreme Court decisions ..., under the 1909 copyright law, the cable television industry ha[d] not been paying copyright royalties for its retransmission of over-the-air broadcast signals”).

As part of the 1976 amendments to the Copyright Act, Congress enacted the Transmit Clause, which defines a public performance as to:

transmit or otherwise communicate a performance ... of the [copyrighted] work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance ... receive it in the same place or in separate places and at the same time or at different times.

17, U.S.C. § 101. In other- words, any unauthorized public transmission of copyrighted content infringes the owners’ exclusive right of public performance. Consequently, the amendments “redefined the term performance to include such secondary transmissions [by CATV companies], creating potential copyright liability for cable systems and carriers involved in such transmissions.” Hubbard Broad., Inc. v. S. Satellite Sys., Inc., 593 F.Supp. 808, 813 (D.Minn.1984) (internal citations omitted),

’ Congress did not stop there. It also enacted a compulsory licensing framework in § 111(c) to allow “cable TV systems to retransmit the copyrighted programming of distant broadcast stations in return for certain royalty payments.” Id.; see also 1976 H.R. Rep., at 88 (explaining that § 111(c) is clearly “directed at the operation of cable television systems and the terms and conditions of their liability for the retransmission of copyrighted ,works”).

Section 111(c)(1) provides:

[Secondary transmissions to the .public by a cable system of a performance or display of a work embodied in a primary transmission.made by the,Federal Communications Commission ..... shall be subject to statutory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations,- or authorizations of. the Federal Communications Commission.

§' 111(c)(1). It follows from, the clear text that cable systems may “retransmit to their customers any primary transmissions made by a broadcast station licensed by the [FCC]” so long as: (1) the retransmission is permissible under FCC rules, regulations, and authorizations; and (2) the cable systems “pay a fee, to be distributed to the copyright owners as surrogate for the royalties for which they might have 'negotiated under a pure market scheme,” See Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc., 836 F.2d 599 (D.C.Cir.1988) (MPAA). Finally, the statute defines a “cable system” as:

a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted -or programs broadcast by one or more .television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.-

§ 111(f)(3). This definition gives rise to the parties’ cross-motions for summary judgment concerning Defendants’ § 111(c) affirmative defense and counterclaim.

B. Aereo III Decision

Aereo III considered a system that is virtually identical to that of FilmOn X. 134 S.Ct. 2498. Aereo, Inc., a competitor of FilmOn X, relied on identical mini-antenna/DVR technology to retransmit over-the-air. broadcast signals over the Internet to individual subscribers. Id. at 2503. In analyzing Aereo’s system and retransmission activities, the Supreme Court found that Aereo was not just an “equipment supplier” and, thus, reversed a Second Circuit ruling that Aereo did not perform publicly within the meaning of the Transmit Clause. Id. at 2507, 2511. As part of its reasoning, the Court drew an analogy between Aereo and the CATV companies targeted by the 1976 amendments to the Copyright Act. Id. at 2507. The Court reasoned that, since the 1976 amendments made it patently clear that cable companies could be liable for copyright infringement, it necessarily followed that Aereo, “a system that is for all practical purposes a traditional cable system,” performed publicly for purposes of the Copyright Act. Id.

The Supreme Court highlighted Aereo’s “overwhelming likeness” to CATV companies as it compared the “turn of the knob” of old television sets to the “click on a website” of modern internet-based.retransmission services. Id. The Court also stated that any technological differences between CATV systems and Aereo were “invisible to subscriber and broadcaster alike.” Id. As such, the Court held that, insofar as there are differences in their respective technologies, “those differences are not adequate to place Aereo’s activities outside the scope of the Act.” Id. at 2511.

C. Section 111(c) Affirmative Defense and Counterclaim

Defendants seek a declaratory ruling that FilmOn X’s unauthorized Internet-based retransmissions do not infringe Plaintiffs’ copyrights because FilmOn X is a “cable system” that qualifies for a § 111(c) compulsory license. Defs.’ Mot. for Súrnm. J. [Dkt. 97]. Consequently, the question here is whether FilmOn X is a cable, system in light of the analogies in Aereo III and the text of § 111(c).

1. Res Judicata

Plaintiffs first argue that the doctrine of res judicata precludes Defendants from re-litigating their defense and counterclaim. Pis.’ Mem. at 16-17. Specifically, Plaintiffs contend that Defendants had a “full and fair opportunity to litigate” precisely this issue — -whether they are entitled to a § 111 compulsory license. Id. (citing Taylor v. Sturgell, 553 U.S. 880, 892-93, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008)). Plaintiffs point out that FilmOn.com, Inc. litigated this defense unsuccessfully in the New York action where Judge Buchwald rejected it twice. Id. The first rejection came with the entry of the 2012 Stipulated Consent Judgment and Permanent Injunction binding FilmOmeom; Inc. and its affiliates. The second rejection' came in the wake of Aereo III when Judge Buchwald found FilmOn.com; Inc. in contempt of the 2012 Injunction. Plaintiffs contend that FilmOn X is barred from litigating the same defense in the present action.

The argument is misplaced. Under the doctrine of res judicata, an earlier suit would preclude subsequent actions only if there is an .“(l) an identity of the cause of action in-both suits; (2) identity of the parties in both suits; and (3) a final judgment on the ■ merits by a court of competent jurisdiction.” Velikonja v. Ash croft, 355 F.Supp.2d 197, 200 (D.D.C.2005) (citing Does I through III v. District of Columbia, 238 F.Supp.2d 212, 217 (D.D.C. 2002)). Moreover, a previous suit does not bar a subsequent suit that dpes not involve the same “transaction” or “share the same nucleus of facts.” Davis v. Geithner, 919 F.Supp.2d 8, 16 (D.D.C.2013); see also Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir.1997) (“In determining..whether the res judicata doctrine applies, the fact that the first and second suits involved the same parties, similar legal issues, similar facts, or essentially the same type of wrongful conduct is not dispositive.”) (internal citations omitted).

The instant case does nob involve the same transaction or share the same nucleus of facts as the New York action because Defendants launched FilmOn X’s service after the 2012 Injunction was entered. The technology and service challenged in the New York action did not involve the mini-antenna/DVR technology at stake here. See David Decl. ¶¶ 6-9. It also did not involve time-delayed retransmissions of the copyrighted content. See id. In fact, FilmOn X’s service was-’ specifically designed to avoid copyright liability under then applicable Second Circuit precedent. See Maharaj, 128 F.3d at 97 (“Thus, as a matter of logic, when the second action concerns a transaction occurring after the commencement of the prior litigation, claim preclusion generally does not come into play.”). '

The Court also notes that Plaintiffs opted to bring actions in California and D.C. to challenge FilmOn X’s service, as opposed to again enforcing the 2012 Injunction in New York. Consequently, it cannot be said that the earlier action, which did not involve the same technology, arid facts, precludes Defendants from arguing now that FilmOn X is a cable system entitled to a statutory license. Furthermore, Plaintiffs’ res judicata argument contradicts their view that § 111 should not be interpreted in a technology-agnostic manner. If technological differences matter for purposes of determining what is a cable system under § 111, it necessarily follows that Judge Buchwald’s rejection of Fil-mOn.corii, Inc’s § 111 defense does not bar Defendants from raising the same defense with respect to FilmOn X’s technology. Finally, Defendants’ position that Aereo III undermines and- calls -into question Judge Buchwald’s decision in the New York action is another reason why Plaintiffs’ res judicata argufnerit should be rejected. See State Farm Mut. Auto Ins. Co. v. Duel, 324 U.S. 154, 162, 65 S.Ct. 573, 89 L.Ed. 812 (1945) (“[RJes judicata is no defense where between the time of the first judgment and the second there has been- an intervening decision or change in the law creating an altered situation.”). For these reasons, the Court finds that Defendants’ § 111 argument is not barred and proceeds to the merits.

2. Aereo III and the § 111 Defense

The parties agree that the issue addressed in Aereo III was whether Aereo’s Internet-based retransmissions constituted public performances for purposes of the Transmit Clause, but not whether Aereo was a cable company for purposes of § 111(c). Nonetheless, Defendants contend that the Supreme Court’s reasoning in Aereo III is instructive and relevant to deciding whether FilmOn X’s service is a cable system under the Copyright Act. Defendants further suggest that Aereo III embraces a technology-agnostic interpretation of the 1976 amendments and the Copyright Act as a whole. To support this proposition, Defendants rely on the fact that the Supreme Court highlighted the “overwhelming likeness” between Aereo’s service and that of CATV systems and dismissed technological differences on the basis that they were “invisible to subscriber . and broadcaster alike.” See Aereo III, 134 -S.Ct. at 2507. Defendants argue that the Court's reasoning implies that no technological difference between FilmOn X and cable, companies matters for purposes of the § 111 licensing scheme. In other words, if an Internet-based retransmission service is “substantially similar to” and “for all practical purposes a traditional cable system[,]” then it must be that FilmOn X’s service qualifies as a cable system under § 111. See 2015 California decision, 115 F.Supp.3d at 1163,-2015 WL 4477797 at:*8 (stating that the Supreme Court’s analogy, while not- controlling the result, is “about as close a statement directly in Defendants’ favor as could be made”). This Court respectfully disagrees. • . •

As Defendants recognize, the Supreme Court analyzed Aereo’s activities only for purposes of the Transmit Clause. Therefore, any analogy' to cable companies should be interpreted in that particular context. More than that, however, Defendants over-read Aereo III. The Court does not agree that the Supreme Court adopted a technology-agnostic interpretation of the Transmit Clause, let alone the Copyright Act as a whole. It specifically stated:

In other cases involving different kinds of service or. technology providers,-a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the. provider performs within the -meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us-that this difference is not critical here. We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].”

Aereo III, 134 S.Ct. at 2507. In other words, technological differences could very well matter as to whether a particular provider “performs” within the meaning of the Transihit Clause. The Supreme Court merely said that the' differences between Aereo and cable companies were not sufficient to immunize Aereo’s practices from copyright liability. See id. Such a holding does not direct the courts to embrace a technology-agnostic interpretation of the Transmit Clause or, even less, the Copyright Act in all circumstances. The fact that “an entity performs copyrighted works in a way similar -to cable systems” cannot be construed as an order that such entity “must then be deemed a cable system for all purposes of the Copyright Act.” Aereo IV, 2014 WL 5393867, at *3. Therefore, while- the technological differences between Aereo - and cable companies were legally immaterial for. purposes of Transmit Clause liability, the question remains whether these differences are relevant for purposes of § 111.

Further, even if the Supreme Court intended to adopt a technology-agnostic approach for the Transmit Clause in Aereo III, such an approach should not be extended to the § 111 licensing scheme. The Court’s underlying reasoning when it disregarded the technological differences between. Aereo and cable' companies was that those differences were “invisible to subscriber and broadcaster alike.” Aereo III, 134 S.Ct. at 2507. Its statement only makes sense in the context of the Transmit Clause. Aereo III specifically.noted that “Congress enacted new language that erased the Court’s line [in Fortnighly and Teleprompter] between broadcaster and viewer, in respect to *perform[ing]’ a work.” Id. at 2505 (emphasis added). Consequently, since the broadcaster-viewer divide was erased- “in respect to ‘perform[ing]’ a work,” 1 technological differences could be disregarded when interpreting the Transmit Clause, but not necessarily when analyzing a different provision- of the Copyright Act. Id.

Unlike the definition of a cable system in § 111(f)(3), the text , of the Transmit Clause supports such a broad reading. Compare 17 U.S.C. § 101 (referring in broad terms to transmissions or communications made “by means of any device or process” regardless of whether the public receives them “in the same place or in separate places and at the same time or at different times”) (emphasis added) with Id. § 111(f)(3) (requiring that a cable system be a physical “facility” capable of receiving broadcast signals and retransmitting them to subscribers through specific means, such as “wires, cables, microwave, or other communications channels”). Accordingly, this Court rejects Defendants’ argument that Aereo III stands for the proposition that courts should embrace a technology-agnostic interpretation of the Copyright Act in all respects. In fact, Aereo III itself rejects Defendants’ view.

Finally, Defendants direct this Court’s attention to the Justices’ discussion at oral argument. Defs.’ Mem. at 17-18. Specifically, Defendants rely on Justice Sotomay'or’s questioning whether the Court could avoid a ruling on the Transmit Clause by finding that Aereo was a cable company entitled to a compulsory license. Id. Defendants also rely on Justice Breyer’s alleged “concern” that excluding Aer-eo from the compulsory licensing system would limit the public’s access to copyrighted works. Id. According to Defendants, these sporadic comments at oral argument are instructive as to whether Internet-based retransmission services, such as FilmOn X, are entitled to a § 111 license. There are three probláms with Defendants’ argument. First, Aereo never argued before the Supreme Court that it was a cable system entitled to a statutory license. See, e.g., Brief for Respondent, Aereo III, 2014 WL 1245459, at *34 n.17 (U.S. Mar. 26 2014) (No. 13-461). Therefore, the issue was never properly raised before the Court, let alone briefed or argued. Second, it is well-established that “the Justices’ questions and commentary at oral argument 'have no legal effect.” Aereo IV, 2014 WL 5393867, at *4. Third, even if relevant or instructive, the Justices’ comments undermine Defendants’ position because they show that the Justices were fully aware of a potential §’ 111 defense and yet chose not to' mention it in the Court’s opinion. See id. (“This awareness at oral argument coupled with silence in the opinion could just as easily imply that the Court did not .conclude that the defense was applicable on the facts here.”).

3. Definition of a Cable System under § 111(f)(3)

While Aereo III did not endorse a technology-agnostic interpretation of § 111, this Court must still determine whether the provision’s plain statutory text could support such an interpretation. Specifically, the question before this Court is whether FilmOn X satisfies the statutory definition of a “cable system” under § 111(f)(3). In answering this question, the Court must give effect to the definition’s meaning “as written.” Est. of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). In interpreting a statute, the general rule is that a court “must first determine whether the statutory text is' plain and unambiguous.” See Carcieri v. Salazar, 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009) (citations omitted). “[W]hen deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ ” King v. Burwell, — U.S. -, 135 S.Ct. 2480, 2488, 192 L.Ed.2d 483 (2015) (internal citations omitted); see also U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (“In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”) (citation omitted). In fact, “often-times the ‘meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.’” Id. at 2483 (internal citations omitted). Furthermore, where the statutory language is ambiguous, courts “may examine the statute’s legislative history in order to ‘shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.’” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 300 (D.C.Cir.2003) (quoting National Rifle Ass’n v. Reno, 216 F.3d 122, 127 (D.C.Cir.2000)). Finally, to the extent that there is any doubt as to Congress’s intent, the Court may defer to the interpretation by the Copyright Office— the federal agency responsible for overseeing § Ill’s compulsory licensing scheme. See MPAA, 836 F.2d at 608.

The definition of a cable system can be divided into five elements:

(1) a facility, (2) located in any State, Territory, Trust Territory, or Possession, that (3) in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and (4) makes secondary transmissions of such signals or programs by wires, cables, micro- ' wave, or other communications channels (5) to subscribing members of the public who pay for such service.

§ 111(f)(3) (numbers not in original). Defendants offer various reasons as to why FilmOn X fits squarely within the plain definition of a “cable system.” First, they argue that the definition is completely indifferent as to the mode of retransmission technology used. Second, Defendants com tend that the definition’s reference to “other communications channels” shows that Congress intended the Copyright Act to be construed broadly. According to Defendants, § 111(f)(3) relies on broad and technology-agnostic language to cover new technologies, such as Internet-based retransmission services. Finally, Defendants assert that FilmOn X satisfies each definitional element because it: (1) has physical facilities in various states; (2) receives over-the-air broadcast signals from FCC-licensed stations; (3) makes secondary transmissions over the Internet, which" involves delivering the video content through coaxial cables, fiber-optic cables, microwave links, and other communication- channels; and (4) provides the service-to subscribing members of the public who pay for it. Id. at 16. •• :

There are problems, however, with Defendants’ argument. Defendants conveniently separate § lll(f)(3)’s definitional elements to avoid the plain language of the provision. According to the definition, cable systems are physical far cilities that both receive and retransmit broadcast signals to subscribers. The text makes clear that the physical facility must do two things: (1) “receive[ ] signals transmitted or programs broadcast by one or more television broadcast stations licensed by the [FCC], and (2) make[ ] secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.” 17 U.S.C. § 111(f)(3) (emphasis added). FilmOn X, however, is not this type of “facility.”

While FilmOn X does have physical facilities with dime-sized antennas that capture broadcast signals, it ultimately relies on the Internet to deliver video content to the subscriber. See, e.g., Summ. J. David Decl. ¶¶ 22-26; Meldal Deck ¶¶ 16-18. Unlike FilmOnX, cable companies have a control center known as “headend,” from which they both receive the signals and directly retransmit them by coaxial cable, wires, or microwave links to their subscribers. See ivi II, 691 F.3d at 280 (citation omitted); see also 1976 H,R. Rep., at 88 (“A typical [cable] system consists of a central antenna which receives and amplifies television signals and a network of cable through which the signals are transmitted to the receiving sets of the-individual subscribers.”). Internet-based retransmission services, however, have physical facilities that receive the broadcast signals and retransmit them to Internet service providers, as opposed to sending them directly to the subscribers’1 digital device. See Defs.’ SUMF ¶¶ 26-27 (citing Summ. J. David Deck ¶¶26; Meldal Deck ¶¶ 16-18) (“[R]ather-than directly send the data to the subscriber, a server saves the data in a subscriber-specific folder on FilmOn X’s hard drive” and, then, “once several seconds of programming have been saved, FilmOn X’s server begins to stream the saved copy of :the show to the subscriber over the Internet.”).

FilmOn X is able to complete the transmission over the Internet because “hurt-dreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications' and information with other computers ...” ACLU v. Reno, 929 F. Supp. 824, 830 (E.D.Pa.1996) (Reno I), aff'd, Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (Reno II). It follows that the subscriber’s device receives the retransmission,- not from the “facility,” but from interconnected computers through cyberspace.

The Internet is not a physical “facility[ ] located in any State.” 17 U.S.C. § 111(f)(3). It is not even .a “physical or tangible entity .... ” Reno I, 929 F.Supp. at 830. Instead, the Internet is a “global network of millions of interconnected’computers” that provides for the distribution of content worldwide, ivi II, 691 F.3d at 280 (quoting 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 403 (2d Cir.2005)) (other citations omitted). The fact- that the Internet exists in cyberspace and'has no geographical location demonstrates how different FilmOnX is from a cable company that is able to capture a broadcast signal and retransmit it directly. See id. (quoting Reno I, 929 F.Supp. at 832) (“There is no centralized storage location, control point, or communications channel for the Internet .... ”). Since § 111(f)(3) requires that a physical “facility” must receive the broadcast signals and make the secondary transmissions to paying subscribers, .any system that fails to encompass the distribution medium and does not retransmit, the signals directly to the subscriber does not qualify as a “cable system,” For this reason, the Internet-based- retransmission system relied upon by FilmOn X is not entitled to a § 111(c) compulsory license.

In .addition to the plain language of § 111(f)(3), the Court finds support for its reading of the cable system definition in the treatment of satellite carriers. In 1988, a district-court held that a satellite-broadcaster was not a “cable system” for purposes of § 111. See Pacific & Southern Co. v. Satellite Broadcast Networks, Inc., 694 F.Supp. 1565, 1574 (N.D.Ga.1988) (SBN I). Instead of amending the definition of a cable system,- Congress enacted the Satellite Home Viewer Act in 1988, which created a six-year statutory license for satellite television providers retransmitting out-of-market or “distant” signals. 17 U.S.C. § 119, The 1998 Act, however, was not meant to affect satellite broadcasters’ potential § 111 defense in the SBN I litigation. As a result, the Copyright Office quickly intervened and promulgated regulations denying satellite carriers the right to a § 'lll(c) compulsory license. See 56 Fed. Reg. 31,580 (1991); 57 Fed. Reg. 3283. According to these regulations, § 111 directly targets “localized retransmission services” and does not cover satellite carriers. 57 Fed. Reg. 3284, 3292.

Thereafter, in Satellite . Broad. & Commc’ns Ass’n of Am. v. Oman, the Eleventh Circuit held that the regulations reasonably interpreted the Copyright Act and constituted “valid exercises of the Copyright Office’s statutory authority to interpret the provisions of the compulsory licensing scheme.” 17 F.3d 344, 345 (11th Cir.1994). In reaching this conclusion, Oman rejected, the satellite carriers’ argument that the Copyright Office’s interpretation “rest[ed] on the obviously erroneous premise that the satellite itself is the ‘facility’ ” and “ignor[ed] the substantial ground facilities of satellite- carriers — all of which are ‘located in any State of the United States.’” Brief for Appellees, SBCA v. Oman, 1993 WL 13127030, at *26 (11th Cir. Sept. 24, 1993) (No. 93-8395). Similarly, Internet-based retransmitters lack ground facilities that both receive broadcast signals and retransmit them directly to the public. They rely on the Internet— an “international system” with “no centralized control” — to retransmit the signals to the subscriber. Reno I, 929 F.Supp. at 831, 838, In both instances, the distribution medium that reaches the paying subscriber is not part of the “facility” claiming to be a “cable system.” Thus, neither satellite broadcasters nor FilmOn X could be described as localized retransmission services entitled to a § 111(c) compulsory license.

The Court recognizes that the physical layer through which the Internet can deliver video content may include cables, wires, and microwaves. See Meldal Decl. ¶¶ 9,17-18. Nonetheless, it is also true that the Internet does not deliver video content exclusively through coaxial cables, fiber-optic cables, and microwave links. The Internet also relies on multiple other types of distribution media, such as satellite, cellular networks, and Wi-Fi. Cable systems in 1976 transmitted broadcast signals exclusively through wires and cables and served on average only 2-3'communities. See 1976 H.R. Rep., at 88. Precisely because these 1976 cable companies used wires and cables, they controlled the entire-transmission path leading directly to the subscribers. The same cannot be said of Internet-based retransmission services.

FilmOn X’s service uses a myriad of distribution media that ultimately deliver content via a global network of interconnected computers over which it has no control. The content that eventually reaches the paying subscriber “could travel any of a number of routes to its destination.” Reno I, 929 F.Supp. at 831-32. For example:

[A] message sent from a computer in Washington, D.C. to a computer in Palo Alto, California, might first be sent to a computer in Philadelphia, and'then be forwarded to a computer in Pittsburgh, and then to Chicago, Denver and Salt Lake City, before - finally reaching Palo Alto. If the message could not travel along that path (because of a military attack, simple technical malfunction, or other reason), the message would automatically (without human intervention or even knowledge) be re-routed, perhaps, from Washington D.C. to Richmond, and then to Atlanta, New Orleans, Dallas, Albuquerque; Los Angeles, and finally to Palo Alto.

Id. at 832. As the Internet continues to grow and expand, it becomes more evident that “it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.” Id. In fact, when the subscriber goes to Fil-mOn X’s website and directs FilmOn X to stream the television programming, the subscriber is essentially retrieving information stored in remote computers. Reno II, 521 U.S. at 852, 117 S.Ct. 2329 (describing the World Wide Web as “vast number of documents stored in different computers all over the world that users can search for and retrieve”). This information “do[es] not necessarily travel entirely along the same path.” Reno I, 929 F.Supp. at 832. Instead, the information is “subdivided into smaller ‘packets’ that are then sent independently to the destination,” through different routes and paths, “and are then automatically reassembled by the receiving computer.” Id. The information is retransmitted and re-routed around the world in a matter of seconds before it reaches its destination. It follows that the global reach of -Internet-based retransmitters is quité different from the cable companies’ localized retransmission of over-the-air signals. Reno I, 929 F.Supp. at 837 (“The power of the [World Wide] - Web stems from the ability of a link to point to any document, regardless-óf its status or physical location.”). - - -

Moreover, satellite providers, like Internet-based services, deliver video content through many types of communication channels, such as cables, wires, and microwaves. See Suppl. Jones Decl. ¶6. Since satellite providers are not cable systems, it is unlikely that Congress intended for any entity that happens to employ wires and cables as a mere part- of its-transmission path to qualify as a “cable system.” Defendants do not provide a cogent explanation as to why FilmOn X should be treated differently. In any event, to the extent that the plain text of § 111(f)(3) could be deemed ambiguous in its definition, the Court looks to the Copyright Office’s interpretation and decides the degree to which it may be entitled to deference. See infra Part 4 of Analysis Section.

Defendants also argue that Congress intended § 111 to encompass evolving technologies. Defs.’ Mem. at 15. To support this proposition, Defendants rely on the fact that a facility’s secondary retransmissions can be made by “wires, cables, microwave, or other communications channels ” Id. (quoting § 111(f)(3)) (emphasis added). According to Defendants, the Internet falls under this last broad.category. The argument ignores an important canon of statutory interpretation. Ejusdem generis (“of the same kind or class”) teaches that “when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows.”- Hall Street Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 586, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). In this case, Congress listed specific items— “wires, cables, [or] microwave” — and followed them with the general words “other communications channels.” Under the ancient canon, the Court must determine whether the Internet is similar or of the same kind as “wires, cables, [or] microwave.” See Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 221 (D.C.Cir.2007) (“[W]here the general words follow specific words, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”) (citation and internal quotation marks omitted).

A communications channel is “the medium used to transmit the signal from the transmitting • to the receiving point.” Claude Shannon, “Communication In the Presence of Noise,” 86 Proceedings of the IEEE 1 (1998), Wires, cables, and microwaves are examples of such media with “specific” and- “defining characteristics,” such as “bandwidth, noise, and throughput.” See Suppl. Jones Decl. ¶¶ 4-5. The Internet does not share these characteristics. Instead,; the Internet is “a global network of interconnected computers” that has “no centralized storage location, control point, or communications channel.” ivi II, 691 F.3d at. 280 (citations omitted); see also Suppl. Jones Deck ,¶ 4, The Court concludes that a system that operates through nebulous international- connections in cyberspace does not constitute a “channel” similar .to “wires, cables [or] microwave.”

■ Indeed, the plain language of § 111(f)(3) does not support Defendants’ broad interpretation, which becomes even more farfetched when the words are read “in their context, and with a view to their place in the overall statutory scheme.” King, 135 S.Ct. at-2488, If it were true that Congress intended the definition of a.cable system to embrace any and all new technologies, Congress would not have-amended the Act in 1994 to specify “microwave” as an example of a “communications channel.” ivi II, 691 F.3d at 282. It also would not have enacted separate licensing schemes for satellite, providers retransmitting distant signals, see. 17 U.S.C., § 119, and local broadcast signals, see id. § 122. Congress did not consider the ..Internet in 1976 when § 111 was enacted and has not amended the definition .since to.include anything resembling a distribution medium with a global footprint.

Beyond - the text and overall statutory scheme, the legislative history of the Copyright Act indicates that the “approach of the bill [containing the 1976 amendments] is to set forth the copyright .owner’s exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, "or exemptions in the 12 sections that follow.” 1976 H.R. Rep., at 61 (emphasis added). Section 111 contains “limitations” that must be construed narrowly to preserve the copyright owner’s broad § 106 exclusive rights. See Tasini v. N.Y. Times Co., 206 F.3d 161, 168 (2d Cir.2000) (stating that where the Copyright Act “sets forth exceptions to .a general rule, we generally construe the exceptions ‘narrowly in order to preserve the primary operation of the [provision]’ ”) (citation omitted). Defendants’ argument overlooks the congressional intent as evi-. denced in the text of the Copyright Act and its legislative history. Aereo III advised: “[T]o the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of [new] technologies and the Copyright Act, they are of course free to seek action from Congress.” 134 S.Ct. at 2511 (citing Digital Millennium Copyright Act, 17 U.S.C. § 512) (indicating that not all new communications media will be automatically entitled to treatment as a cable system) (emphasis added). Defendants are free to seek action from Congress and this Court will not twist and bend the statute’s definition of a cable system to accommodate FilmOn'X’s service.

Finally, another canon of statutory interpretation counsels against construing the text broadly to include Internet-based retransmission services. The Charming Betsy canon provides that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804). In other words, statutes should not be construed, if possible, to place the United States in violation of its international obligations. In this case, the United States has “ratified several free trade . agreements which contain the obligation that ‘neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without authorization of the right holder or right holders, if any, of the content of the signal and of the signal —’” U.S. Copyright Office, Satellite Home Viewer Extension and Reauthorization Act Section 109 Report 188 (2008) [Dkt. 91-4] (“SHVERA Report”). Requiring that FilmOn X be.granted compulsory ■ license could violate this international obligation. See ivi I, 765 F.Supp.2d at 611, 613. Since another possible construction remains — and it is consistent with the Court’s interpretation of what Congress actually intended as evidenced by the statute’s text and legislative history — the Court finds that FilmOn X is not a cable system. ■

In conclusion, the plain language of § 111(f)(3) contradicts Defendants’ position that Internet-based retransmitters are entitled to a compulsory license. The Court’s interpretation becomes even more forceful when the text is read as part of the overall statutory scheme. The best Defendants could assert is that § 111(f)(3) is ambiguous, particularly with respect to: (1) whether the entity must own or' control its transmission path from headend to paying subscriber .to q