1 14

‐ 3123

‐ cv

CBS Broadcasting v. FilmOn.com Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2015

(Argued: August 31, 2015 Decided: February 16, 2016)

Docket No. 14

‐ 3123

‐ cv

___________________ __________________ __________________ _________________

CBS B ROADCASTING I NC

., NBC S TUDIOS

, I NC

., U NIVERSAL N ETWORK T ELEVISION

, LLC, NBC S UBSIDIARY (KNBCTV), I NC

., T WENTIETH C ENTURY F OX F ILM

C ORPORATION

, F OX T ELEVISION S TATIONS

, I NC

., ABC H OLDING C OMPANY

, I NC

.,

D ISNEY E NTERPRISES

, I NC

., NBC S TUDIOS LLC, NBC S UBSIDIARY (KNBCTV) LLC,

A MERICAN B ROADCASTING C OMPANIES

, I NC

., B IG T ICKET T ELEVISION

, I NC

., CBS

S TUDIOS I NC

., O PEN 4 B USINESS P RODUCTIONS LLC,

Plaintiffs

‐ Appellees

,

‐ v. ‐

F ILM O N

. COM

, I NC

.,

Defendant

‐ Appellant

,

A LKIVIADES D AVID

,

Respondent

‐ Appellant

.

___________________ __________________ __________________ _________________2 Before:

H ALL

, L IVINGSTON

, and L OHIER

, Circuit Judges

.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Buchwald

, J. ) holding Defendant

‐ Appellant

FilmOn.com, Inc. and Respondent

‐ Appellant Alkiviades David in contempt,

sanctioning FilmOn.com, Inc. $90,000, and awarding Plaintiffs

‐ Appellees

attorneys’ fees. Appellants argue that the district court abused its discretion

when it held them in contempt because the injunction was not clear and

unambiguous and they diligently attempted to comply with the injunction in a

reasonable manner. Appellants further contend that the district court abused its

discretion by imposing criminal sanctions and by awarding attorneys’ fees. The

district court did not abuse its discretion when holding both FilmOn.com, Inc.

and David in contempt, sanctioning FilmOn.com, Inc., and awarding attorneys’

fees.

AFFIRMED.

R YAN G. B AKER

, Baker Marquart LLP, Los Angeles, CA, for

Defendant

‐ Appellant FilmOn.com Inc. and

Respondent

‐ Appellant Alkiviades David

.

R OBERT A LAN G ARRETT

,

Peter L. Zimroth (on the brief), Arnold &

Porter LLP, New York, NY, for Plaintiffs

‐ Appellees CBS Broadcasting et al.

Julie A. Shepard and Paul M. Smith (on the

brief), Jenner & Block LLP, Washington,

DC, for Plaintiffs

‐ Appellees Twentieth Century

Fox Film Corporation and Fox Television

Stations, Inc.3 H ALL

, Circuit Judge :

FilmOn.com, Inc. (“FilmOn”) and FilmOn’s Chief Executive Officer,

Alkiviades David (“David”), appeal from an August 15, 2014 judgment entered

in the United States District Court for the Southern District of New York

(Buchwald, J .) pursuant to a decision holding FilmOn and David in contempt of

an August 8, 2012 Consent Order of Judgment and Permanent Injunction (the

“Injunction”). The Injunction prohibited FilmOn from distributing copyrighted

content owned by Plaintiffs

‐ Appellees (collectively, the “Plaintiffs”)—a group of

television networks including CBS Broadcasting Inc., NBC Studios LLC, Fox

Television Stations, Inc., and ABC Holding Company Inc. On July 7, 2014, the

district court ordered FilmOn and David to show cause why the district court

should not hold FilmOn in contempt for violating the Injunction because FilmOn

had used its Teleporter technology (“Teleporter System”) to distribute the

Plaintiffs’ copyrighted television programs without the Plaintiffs’ permission.

The district court found that FilmOn had violated the Injunction and held both

FilmOn and David in civil contempt, sanctioned FilmOn $90,000, and awarded

the Plaintiffs attorneys’ fees. On appeal, FilmOn and David argue that the district

court abused its discretion when it held them in contempt, sanctioned FilmOn,4 and awarded the Plaintiffs attorneys’ fees. For the reasons stated below, we

affirm the district court’s decision.

I. BACKGROUND

In 2010, FilmOn launched a service that allowed subscribers to use a

computer or mobile device to stream an assortment of television stations over the

Internet. The Plaintiffs sued FilmOn for copyright infringement and sought a

temporary restraining order. In response, FilmOn argued that it was operating as

a cable system and therefore it qualified for a Section 111 compulsory license

under the Copyright Act, 17 U.S.C. § 111. 1 The district court granted the

temporary restraining order, and in July 2012 the parties entered into a

settlement agreement (the “2012 Settlement Agreement”) which was executed by

David in his personal capacity and on behalf of FilmOn. The district court

1 Section 111(c)(1) of the Copyright Act provides that “secondary transmissions

to the public by a cable system of a performance or display of a work embodied

in a primary transmission made by a broadcast station licensed by the Federal

Communications Commission [“FCC”]

. . . shall be subject to statutory

licensing.” 17 U.S.C. § 111(c)(1). If the FCC determines that FilmOn is a cable

system under the Copyright Act then FilmOn will qualify for a Section 111

license and be entitled to transmit the Plaintiffs’ copyrighted content, subject to

fees and restrictions imposed on Section 111 license holders.5 approved the 2012 Settlement Agreement and then entered it as a stipulated

consent judgment and the Injunction.

The Injunction prevents FilmOn and its “affiliated companies, and all of its

officers, directors, agents

. . . from infringing, by any means, directly or

indirectly, any of plaintiffs’ exclusive rights under Section 106(1)

‐ (5) of the

Copyright Act, including but not limited to through the streaming over mobile

telephone systems and/or the Internet.” App. 175. The injunction explicitly

provides that any violation of its provisions would expose FilmOn to “all

applicable penalties, including contempt of Court.” Id.

After consenting to the Injunction, FilmOn began offering its subscribers a

video on demand (VOD) service which allowed users to access an archive of

previously televised programs for streaming at any time. In July 2013, the

Plaintiffs sought an order to show cause why FilmOn should not be held in

contempt for violating the Injunction. The district court found FilmOn and David

in contempt for the unauthorized VOD streaming of the Plaintiffs’ programming.

The district court issued a contempt judgment (“2013 Contempt Judgment”) that

required defendants to agree not to use the VOD system to stream any of the

Plaintiffs’ copyrighted programming and to remove all broadcast programming6 identified by the Plaintiffs. In addition, the 2013 Contempt Judgment awarded

the networks $115,046.10 in attorneys’ fees and provided that “any further failure

to comply with the Injunction [] shall be punishable by a penalty of $10,000 per

day of noncompliance.” App. 269.

After the 2013 Contempt Judgment was entered, FilmOn X 2 —FilmOn’s

sister company—deployed a new Teleporter technology which FilmOn alleges

was specifically designed to comply with the Injunction and this Circuit’s

decision in Cartoon Network LP v. CSC Holdings, Inc.

, 536 F.3d 121 (2d Cir. 2008)

(“ Cablevision ”) while still providing copyrighted content to users. In Cablevision

we held that a remote storage DVR system allowing users to record and store

programming on hard drives did not violate the public performance rights of

copyright owners. Id. at 140. FilmOn’s Teleporter System leveraged this remote

storage DVR technology to allow consumers to view television content over the

Internet at essentially the same time that the content was being broadcast over

the airwaves.

2 We refer to FilmOn.com, Inc. and FilmOn X collectively as “FilmOn” because

FilmOn X is an “affiliated compan[y]” and is thus subject to the terms of the

Injunction. App. 175.7 Other companies began using similar technology in an attempt to comply

with the law and to deliver copyrighted content to users over the Internet. The

television networks challenged the use of this technology—this time by suing the

company Aereo, Inc.—and this Court determined that the technology did not

infringe upon the networks’ copyrights because the technology was analogous to

the technology in Cablevision

. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 696 (2d

Cir. 2013) (“ Aereo II ”). Because FilmOn’s Teleporter System is essentially the

same as Aereo’s technology, this decision arguably made clear that FilmOn could

deploy its Teleporter System to distribute copyrighted material throughout the

geographic scope of the Second Circuit.

In an attempt to prevent FilmOn from deploying this technology

nationwide, the Plaintiffs filed copyright infringement actions in California and

in the District of Columbia. The California District Court enjoined FilmOn from

using the Teleporter technology within the Ninth Circuit, Fox Television Stations,

Inc. v. BarryDriller Content Sys., PLC

, 915 F. Supp. 2d 1138, 1151 (C.D. Cal. 2012),

and on September 5, 2013, the D.C. District Court issued another injunction

enjoining FilmOn from deploying the Teleporter technology nationwide, Fox

Television Stations, Inc. v. FilmOn X LLC

, 966 F. Supp. 2d 30, 52 (D.D.C. 2013). Due8 to our decision in Aereo II

, the D.C. District Court’s nationwide injunction

explicitly did not apply within the geographic boundaries of the Second Circuit.

Id

. After deployment of the Teleporter System within the First Circuit, the D.C.

District Court held FilmOn in contempt for violating its order. The D.C. District

Court warned that it would impose a fine of $20,000 per day for any further

violations of the injunction, noting that FilmOn had once violated the underlying

Injunction in this case. The D.C. Court’s contempt order was never appealed.

On June 25, 2014, the Supreme Court, in American Broadcasting Companies,

Inc., v. Aereo, Inc.

, reversed this Court’s decision that had arguably demarcated

the Second Circuit as a safe haven for using the Teleporter technology. 134 S. Ct.

2498 (2014) (“ Aereo III ”). The Supreme Court agreed with the broadcast

networks, including the Plaintiffs, that “Aereo ‘performs’ petitioners’

copyrighted works ‘publicly,’ as those terms are defined in the Transmit Clause.”

Id

. at 2511 (alteration omitted). The Court held that the use of the remote storage

DVR technology constituted a public performance of the petitioners’ protected

programming and determined that Aereo’s technology, which was previously

permissible within the geographic scope of the Second Circuit, was now

prohibited under the Copyright Act. Id

. at 2507.9 On June 28, 2014, a few days after the Supreme Court’s decision in Aereo

III

, Aereo, Inc. ceased using the prohibited technology. FilmOn, however,

continued to operate its Teleporter System throughout the Second Circuit. On

July 3, 2014, the Plaintiffs filed the underlying Order to Show Cause. Four days

later FilmOn canceled operations of its Teleporter System.

The Plaintiffs argue that, after the Supreme Court’s decision in Aereo III

,

FilmOn violated the injunction by using its Teleporter System to broadcast the

Plaintiffs’ copyrighted content within the Second Circuit

. The Plaintiffs also

contend that FilmOn transmitted the copyrighted programming to regions

outside the Second Circuit. The district court agreed with the television networks

and held FilmOn and David in civil contempt, sanctioned FilmOn $90,000, and

awarded attorneys’ fees. This appeal followed.

II. DISCUSSION

a. FilmOn’s Contempt Order

We first address whether the district court abused its discretion when it

held FilmOn in contempt. “[B]ecause the power of a district court to impose

contempt liability is carefully limited, our review ‘of a contempt order for abuse

‐

of

‐ discretion is more rigorous than would be the case in other situations in which10 abuse of discretion review is conducted.’” E.E.O.C. v. Local 638

, 81 F.3d 1162, 1171

(2d Cir. 1996) (quoting United States v. Local 1804

‐ 1, Int’l Longshoremen’s Ass’n

, 44

F.3d 1091, 1096 (2d Cir. 1995)). We review the district court’s interpretation of the

terms of a consent decree de novo and the factual findings that were the basis for

the contempt order for clear error. Perez v. Danbury Hosp

., 347 F.3d 419, 423 (2d

Cir. 2003).

The contempt power serves to “protect[] the due and orderly

administration of justice and [to] maintain[] the authority and dignity of the

court.” Roadway Express, Inc. v. Piper

, 447 U.S. 752, 764 (1980). A court may hold a

party in contempt if (1) the order the party failed to comply with is clear and

unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the

party has not diligently attempted to comply in a reasonable manner. Paramedics

Electromedicina Commercial, Ltd. v. GE Med Sys. Info. Techs. Inc., 369 F.3d 645, 655

(2d Cir. 2004).

The Injunction prohibits FilmOn, its “affiliated companies,” “officers,” and

others:

from infringing, by any means, directly or indirectly,

any of plaintiffs’ exclusive rights under Section 106 (1)

‐ (5) of the Copyright Act including but not limited to11 through the streaming over mobile telephone systems

and/or the Internet of any of the broadcast television

programming in which any plaintiff owns a copyright.

App. 144.

i. Clear and Unambiguous

An injunction is sufficiently clear and unambiguous if it leaves “no doubt

in the minds of those to whom it was addressed

. . . precisely what acts are

forbidden.” Drywall Tapers & Pointers v. Local 530

, 889 F.2d 389, 395 (2d Cir. 1989).

Here, a violation of the Injunction is conditioned on any violation of the

Copyright Act. App. 144. Whether the Injunction is clear and unambiguous is

thus directly related to whether the Plaintiffs’ exclusive rights under the

Copyright Act were clear and unambiguous. We hold that they were.

FilmOn, nevertheless, argues that the Injunction is unclear and ambiguous

because the Plaintiffs’ exclusive rights under the Copyright Act were in flux and

were uncertain. In particular, FilmOn contends that Aereo III destroyed the state

of clarity surrounding the Plaintiffs’ copyrights and created confusion as to

whether their Teleporter System now qualified for a Section 111 license. Given

this confusion, it was unclear whether FilmOn’s continued deployment of the

Teleporter System would infringe on the Plaintiffs’ rights. Because Aereo’s12 technology and FilmOn’s technology are nearly identical, FilmOn argues that

dicta in the Aereo III decision comparing Aereo to a cable company cast doubt on

whether the current regulatory regime is properly classifying their technology.

FilmOn’s arguments are unpersuasive. Regarding Section 111, we note that

at no point in time has FilmOn obtained a Section 111 license. Although at some

point in the future FilmOn’s technology may eventually qualify for a Section 111

license, under the current law of the Second Circuit “Internet retransmission

services do not constitute cable systems under § 111.” WPIX, Inc. v. ivi, Inc.

, 691

F.3d 275, 284 (2d Cir. 2012) (“ ivi ”). 3 And whatever future door Aereo III may have

opened regarding Section 111 licensing, there is no doubt that the Supreme

Court’s holding explicitly slammed shut the possibility that FilmOn could

continue deploying the Teleporter System throughout the Second Circuit, absent

3 To the extent that Aereo III calls our holding in ivi into question, we note, as the

district court did, that the Court in Aereo III did not address ivi or its holding and

therefore it remains controlling precedent. See United States v. Mason

, 412 U.S.

391, 395 (1973). We decline to speculate on whether the Supreme Court or the

Federal Communications Commission will, in the future, determine whether this

technology qualifies as a cable system under Section 111 of the Copyright Act,

and we decline to revisit our holding in ivi absent a case or controversy that

presents us with that issue. The issue before us is not whether FilmOn is entitled

to a Section 111 license; it is whether the Plaintiffs’ exclusive rights under the

Copyright Act were clear and unambiguous so as to allow the district court to

hold FilmOn in contempt for violating those rights.13 a license, without violating the Copyright Act. Aereo III explicitly held that this

type of technology “performed” petitioner’s copyrighted works “publicly” and

therefore violated the Copyright Act. Aereo III at 2511. The injunction, sufficiently

clear and unambiguous on its own, became even more so after Aereo III such that

there should have been “no doubt in the minds of those to whom it was

addressed” that deploying the Teleporter System was “forbidden.” Drywall

, 889

F.2d at 395.

ii. Clear and Convincing Proof of Noncompliance

The district court did not err when it determined that the proof of

FilmOn’s noncompliance was supported by clear and convincing evidence. Aereo

III made clear that deploying the Teleporter System within the Second Circuit

would violate the Plaintiffs’ copyright. FilmOn admits that it deployed its

Teleporter System in the Second Circuit between June 28, 2014 and July 7, 2014.

This admission belies any claim of error.

iii. Diligent Attempt to Comply in a Reasonable Manner

The district court also did not err when it found that FilmOn did not

diligently attempt to comply with the Injunction in a reasonable manner. FilmOn

correctly understood that Aereo III materially changed the Plaintiffs’ exclusive14 copyrights under the Injunction. FilmOn incorrectly took it upon itself to

interpret that change. If FilmOn, being already subject to an injunction barring it

from infringing the Plaintiffs’ copyrights, wanted to ensure that it remained in

compliance with the Injunction, it “could have petitioned the District Court for a

modification, clarification or construction of the order.” McComb v. Jacksonville

Paper Co.

, 336 U.S. 187, 192 (1949). Instead, it “undertook to make [its] own

determination” of what the Plaintiffs’ rights were. Id. Rather than petitioning the

district court for clarification, FilmOn issued a press release announcing its plans

to file for a Section 111 license, to continue deploying the Teleporter System in

New York and to expand its use nationwide.

Irrespective of whether FilmOn will eventually qualify for a Section 111

license, the fact that it applied for a license is not evidence that it acted in a

reasonable manner under the circumstances. As noted above, FilmOn did not

possess a Section 111 license at the time it deployed its Teleporter System, nor

did it even apply for one until after the Plaintiffs filed the underlying Order to

Show Cause. Moreover, because the district court had already rejected FilmOn’s

Section 111 argument before the Injunction was initially issued, the only prudent15 decision would have been to approach the District Court and argue that the law

had changed in FilmOn’s favor. FilmOn took no such action.

Considering FilmOn’s history of misreading changes in federal copyright

law and being held in contempt for violating multiple federal injunctions both in

this Circuit and in the D.C. Circuit, a response by FilmOn to the Aereo III decision

that diligently attempted to comply with the Injunction should have included

proceeding with caution. Rather than following Aereo Inc.’s lead and

suspending operations, however, FilmOn cavalierly doubled down and

continued deploying the Teleporter System throughout the Second Circuit with

plans to expand. Although it is true that Aereo III may have altered the Plaintiffs’

exclusive rights under the Copyright Act, FilmOn’s response to this change was

not a diligently reasonable attempt to comply with the Injunction under which it

was already required to operate. We conclude that the district court did not

abuse its discretion by holding FilmOn in civil contempt.

b. David’s Contempt Order

We next address whether the district court abused its discretion when it

held Mr. David in contempt. The Injunction not only enjoins FilmOn but also “all

of its officers, directors, agents, servants and employees.” App. 175. A command16 to a company is in “effect a command to those who are officially responsible for

the conduct of its affairs.” NLRB v. Hopwood Retinning Co.

, 104 F.2d 302, 305 (2d

Cir. 1939) (“ Hopwood ”) (quoting Wilson v. United States

, 221 U.S. 361, 376 (1911)).

Even when corporate officers are not a party to the original action, if they

“prevent compliance or fail to take appropriate action within their power for the

performance of the corporate duty, they, no less than the corporation itself, are

guilty of disobedience, and may be punished for contempt.” Hopwood

, 104 F.2d at

305.

According to his own statement opposing the district court’s order, David

had the ability to prevent FilmOn from deploying the Teleporter System. In

addition, FilmOn’s Chief Technology Officer, Mykola Kutovyy, stated in a

declaration that David, as CEO, had previously directed him to limit the

geographic scope in which the technology could function. This evidence

supports the district court’s conclusion that David both had the power to force

FilmOn to comply and failed to “take appropriate action within [his] power” to

prevent FilmOn from violating the injunction. Id. at 305. The district court did

not abuse its discretion by holding David in contempt for FilmOn’s violation of

the injunction.17 c. Sanctions

We now turn to the issue of sanctions. We review the district court’s award

of sanctions for abuse of discretion. United States v. Seltzer

, 227 F.3d 36, 39 (2d Cir.

2000) (“This Court reviews all aspects of a District Court’s decision to impose

sanctions for abuse of discretion.” (internal quotation omitted)). A “court’s

interest in protecting the integrity of [a consent] decree justifies any reasonable

action taken by the court to secure compliance.” NLRB v. Local 3, Int’l Bhd. of

Elect. Workers

, 471 F.3d 399, 406 (2d Cir. 2006) (“ Local 3 ”) (quoting United States v.

Local 359

, 55 F.3d 64, 69 (2d Cir. 1995)). This “inherent power” to enforce a

consent judgment extends “beyond the remedial contractual terms agreed upon

by the parties.” Id

. (internal quotation omitted). This power, however, has limits.

A district court cannot impose criminal sanctions without affording a defendant

the constitutional procedural protections of a jury trial. Int’l Union, United Mine

Workers of Am. v. Bagwell

, 512 U.S. 821, 837–38 (1994) (“ Bagwell” ). FilmOn argues

that the district court imposed criminal sanctions which transformed the civil

contempt into a criminal contempt, and thus that the sanctions could not be18 imposed absent a jury trial. We must now determine whether the district court’s

sanctions were criminal or civil in nature. 4

The nature of a contempt “turns on the character and purpose of the

sanction” issued in response to the contemptuous conduct. New York State Nat’l

Org. for Women v. Terry

, 159 F.3d 86, 93 (2d Cir. 1998). Criminal sanctions “are

intended primarily to punish the contemnor and vindicate the authority of the

court.” Id. Civil sanctions have two purposes: to coerce compliance with a court

order and to compensate a plaintiff. Local 28 of Sheet Metal Workers’ Int’l Ass’n v.

E.E.O.C.

, 478 U.S. 421, 443 (1986). A sanction coerces a defendant when it

“force[s] the contemnor to conform his conduct to the court’s order.” Terry

, 159

F.3d at 93. Where, as here, a sanction does not compensate the party for an injury

caused by the contemptuous act, a sanction is civil only if its purpose is to coerce

the contemnor into compliance. Id. at 95. 5

4 Even though the district court stated its intention to issue civil sanctions to

coerce the defendant into compliance with the Injunction, the district court’s

stated purpose is not dispositive of the nature of the contempt. See Bagwell

, 512

U.S. at 838.

5 Whether a sanction compensates an injured party becomes irrelevant when

“there is no contention that the fines are intended as compensatory” because

“those facts are no more indicative of a punitive intent than of an intent to coerce

compliance.” Terry

, 159 F.3d at 95.19 In Bagwell

, the Supreme Court delineated the nature of coercion in civil

contempts and determined that a hallmark of coercive sanctions was that “the

contemnor is able to purge the contempt and obtain his release by committing an

affirmative act, and thus ‘carries the keys of his prison in his own pocket.’” 512

U.S. at 828 (quoting Gompers v. Buck’s Stove & Range Co.

, 221 U.S. 418, 442 (1911)).

An opportunity to purge is essential; “[t]hus a flat, unconditional fine totaling

even as little as $50 announced after a finding of contempt is criminal if the

contemnor has no subsequent opportunity to reduce or avoid the fine through

compliance.” Id. at 829. “[A] noncompensatory fine is civil, and thus may

ordinarily be imposed in the absence of a criminal trial only if the contemnor is

afforded an opportunity to purge.” People v. Operation Rescue Nat’l

, 80 F.3d 64, 68

n. 7 (2d Cir. 1996) (internal quotation omitted).

Since Bagwell

, other courts have applied the opportunity to purge

requirement to serial contemnors. In situations similar to the facts in this case—

where there is an initial injunction, the injunction was violated, there was a

subsequent contempt order that outlined a future per diem fee schedule for

further violations, there was a subsequent violation of the injunction, and then

the contemptuous conduct was purged before the parties appeared before the20 court—courts have recognized that previous court orders afforded the defendant

an opportunity to purge before entry of the contempt order in dispute. See

Salazar ex rel. Salazar v. District of Columbia

, 602 F.3d 431, 438 (D.C. Cir. 2010)

(“ Salazar ”); NLRB v. Ironworkers Local 433

, 169 F.3d 1217, 1221 (9th Cir. 1999)

(“ Local 433 ”). 6 Within this context, a court’s sanction does not become criminal

even if the court does not afford the party an additional opportunity to purge

because the sanctions were “prompted by [the] party’s previous failure to

purge.” Local 433

, 169 F.3d at 1221. To hold otherwise would negate the coercive

purpose of prospective fee schedules, and “compliance with laws or orders could

never be brought about by fines in civil contempt proceedings.” Id

. (quotation

omitted). Recognizing that repeated findings of contempt, with proper notice of

daily prospective fees, provides the defendant with an adequate opportunity to

purge comports with Bagwell ’s underlying concern of protecting “the due process

rights of parties and prevent[ing] the arbitrary exercise of judicial power.”

Bagwell

, 512 U.S at 834.

6 Although many civil contempt cases post

‐ Bagwell involve administrative

agencies exercising their statutory authority to issue civil sanctions and the

Bagwell Court confined itself to limiting an Article III court’s inherent civil

contempt power, Bagwell

, 512 U.S. at 838, these cases are instructive as to the

coercive character of prospective per diem fee schedules.21 Additional factors illuminate the punitive or coercive nature of sanctions

and highlight the concerns connected to a court’s exercise of its inherent

contempt authority. The sheer size of the sanction is indicative of whether the

sanction is intended to punish or to coerce a contemnor and whether there is a

“need for the protection of the defendant in the adjudication process.” Terry

, 159

F.3d at 94. Further, a district court’s civil contempt power waxes when the

contemptuous act occurs in its presence and wanes when the act occurs outside

of court. Bagwell

, 512 U.S. at 833–34. The dangers related to the abuse of judicial

authority are of particular concern when the contempt involves “out

‐ of

‐ court

disobedience to complex injunctions [because they] often require elaborate and

reliable factfinding.” Id. When the contempt involves a simple disobedient act,

however, the “risk of [an] erroneous deprivation from the lack of a neutral

factfinder” is diminished, and a court’s ability to exercise its inherent civil

contempt power is amplified. Id. at 834. Determining the purpose of a sanction is

a fact

‐ specific inquiry that must be understood in the context of each individual

case. See Terry

, 159 F.3d at 94 (analyzing the purpose of sanctions “in the context

of this case”). Within this framework, and considering these factors, we now

address the district court’s sanctions.22 We hold that the district court’s sanctions were civil in nature because the

purpose of the sanctions was to coerce FilmOn into future compliance. The

district court sanctioned FilmOn $90,000 for violating the Injunction. It calculated

the sanction amount by using the $10,000 per day fee schedule from the 2013

Contempt Judgment and by fining FilmOn for every day that it had deployed the

Teleporter System after Aereo Inc. had ceased deploying its analogous

technology. Although the district court’s stated rationale is not dispositive of the

issue, Bagwell

, 512 U.S. at 838, the district court here noted FilmOn’s repeated

disregard for federal injunctions and recognized the heightened importance of

ensuring FilmOn’s compliance.

As the district court explained, the sanctions were issued in response to

FilmOn’s repeated violation of the Injunction and similar injunctions throughout

the country. FilmOn received notice in the 2013 Contempt Judgment that any

further violation of the Injunction would result in daily sanctions. Accordingly,

the Fee Schedule was a coercive tool to keep FilmOn in compliance. Once

FilmOn disobeyed the Injunction, the district court gave effect to this coercive

tool by sanctioning FilmOn. Moreover, the fact that the Injunction will continue

to remain in effect further suggests that the purpose of the sanctions was to23 ensure future compliance with the Injunction. See Local 433

, 169 F.3d at 1221

(“[F]ines for completed conduct still have a remedial purpose when the court

order remains in place and future compliance is sought.”). The district court’s

“civil contempt powers are particularly adapted to curb recidivist offenders”

where future noncompliance is a well

‐ founded concern. Id. FilmOn’s history of

aggressively pushing the bounds of the Injunction and of repeatedly neglecting

to petition the district court for clarifications further highlights the sanction’s

coercive purpose and effect.

The fact that the sanctions were issued after FilmOn had ceased violating

the Injunction does not transform them into retrospective, punitive penalties

because FilmOn had the opportunity to purge its contemptuous conduct. First,

FilmOn violated the Injunction through its dissemination of the VOD service.

Then, FilmOn was held in contempt in 2013 and was given notice of the

prospective fee schedule, after which it had an opportunity to purge its conduct.

FilmOn in fact arguably purged its conduct by deploying the Teleporter System

in an attempt to comply with this Circuit’s interpretation of the Copyright Act’s

public performance provision. See Cablevision 536 F.3d at 140; Aereo II

, 712 F.3d at

705. After Aereo III

, however, FilmOn’s use of the technology clearly violated the24 Injunction. FilmOn did not come into compliance until nine days after Aereo Inc.

had halted its activities. The series of contempt orders, containing notice of daily

prospective fines, was followed by a clear violation of the Injunction. FilmOn

was afforded an opportunity to purge its conduct after Aereo III

, but did not do

so. See Salazar

, 602 F.3d at 438; Local 433

, 169 F.3d at 1221. The district court was

not required to give FilmOn an additional opportunity to purge before issuing

the sanctions because these fines were prompted by FilmOn’s previous failure to

purge.

Although the contemptuous behavior occurred outside of the courtroom,

the sanctions did not pertain to “widespread, ongoing

. . . violations of a complex

injunction” and the district court did not have to police FilmOn’s “compliance

with an entire code of conduct that the court itself had imposed.” Bagwell

, 512

U.S at 837. The injunction was relatively simple, and although copyright law is

subject to change, the particular shift in law at issue here could be applied clearly

and predictably to FilmOn because its Teleporter System was essentially

identical to the technology that was determined to violate the Copyright Act in

Aereo III

. Finally, the sanction totaled $90,000, a relatively minor amount which is

not large enough to “warrant concern with the adjudication process.” Terry

, 15925 F.3d at 95. This reaffirms our conclusion that the district court’s sanctions were

civil. The district court did not abuse its discretion when it sanctioned FilmOn

$90,000 for failing to comply with the Injunction.

d. Attorneys’ Fees

Finally, FilmOn argues that the district court abused its discretion by

awarding attorneys’ fees to the appellees. This Court reviews an “award of

attorney’s fees for abuse of discretion, which occurs when (1) [the court’s]

decision rests on an error of law... or clearly erroneous factual finding, or (2) its

decision cannot be located within the range of permissible decisions.” McDaniel

v. Cnty. of Schenectady

, 595 F.3d 411, 416 (2d Cir. 2010) (internal quotation

omitted). In the original 2012 Settlement Agreement the Plaintiffs, FilmOn and

David agreed that “[i]n the event of a dispute arising out of or relating to the

terms of this [2012 Settlement] Agreement or [the Injunction], the prevailing

party shall be entitled to recover its reasonable attorneys’ fees and costs.” App.

156. The plain language of this agreement allows for an award of attorneys’ fees

because this matter is related to the terms of the Injunction. We find no abuse of

discretion in the district court’s award of attorneys’ fees.26 III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s decision.