• by Wendy Davis , Staff Writer @wendyndavis, July 1, 2013

The TV networks have been battling online video startups Aereo and Aereokiller practically since the day they said they would launch.

Both companies offer a paid service that enables people to stream over-the-air TV programs to iPads, iPhones and other devices. The startups also offer DVR functionality, allowing subscribers to record shows and stream them later. Both services are seen as enabling cord-cutting, even though they only offer the over-the-air shows that people can obtain without pricey cable subscriptions.

This type of device-shifting and time-shifting service could provide a big benefit to people who want to watch live TV -- like sports matches -- while on the go. But beyond that group, it's not clear whether consumers overall are willing to pay monthly fees for device-shifting.

Regardless, the TV networks have sued both Aereo and Aereokiller (now called FilmOn X), arguing that they infringe copyright by publicly performing TV shows without a license.

The startups counter that their services are legal based on their design, which relies on thousands of small antennas to pick up broadcast signals. The companies say it's perfectly lawful for them to capture shows on antennas, and then stream shows they capture to users on an antenna-to-user basis. They also argue that the streams are not public performances, but private ones.

So far, the networks are losing against Aereo, but winning against Aereokiller/FilmOn X. That's because the cases are in different jurisdictions, which so far interpret copyright law differently. The lawsuit against Aereo is taking place in federal court in New York, where judges said several years ago that remote DVRs don't infringe copyright. In that case, the judges said that Cablevision's transmissions of TV programs via remote DVRs were not public performances.

But the Aereokiller/FilmOn X lawsuit is pending in California, where U.S. District Court Judge George Wu ruled that the company's technology infringes copyright. Wu issued an injunction prohibiting the startup from operating anywhere within the 9th Circuit's jurisdiction.

Aereokiller appealed to the 9th Circuit, which is considering the matter. Last week, Aereokiller filed its latest papers in the case. The company says the only difference between its technology and a combination antenna/DVR is “the length of the 'cord.'”

“In one instance, it runs from the roof to various televisions operated by the user throughout a house. In the case of FilmOn X, the 'cord' runs from a remotely located and uniquely assigned mini antenna and DVR to the user’s computer or mobile device,” Aereokiller says.

The 9th Circuit will hold a hearing for Aug. 27, when it will consider arguments about whether to lift the injunction against the startup.