In another blow to FilmOn X, a federal judge has refused to reconsider her order prohibiting the startup from streaming TV shows.
“FilmOn X's arguments are not persuasive,” U.S. District Court Judge Rosemary Collyer in Washington said in a 10-page opinion issued on Thursday. She added that the TV networks, which have sued FilmOn X for copyright infringement, “are likely to succeed on the merits of their claim.”
Last week, Collyer issued an order banning FilmOn X from streaming TV programs nationwide, except for New York, Vermont and Connecticut -- the three states within the 2nd Circuit, where judges have so far found the company's technology legal.
On Wednesday, FilmOn X filed a motion asking Collyer to reconsider her ruling by lifting the order, or alternatively by limiting its scope to the area covered by the D.C. Circuit. FilmOn X argued that the broad injunction harms its ability to compete with Aereo, a rival that also streams over-the-air TV shows.
FilmOn X said in its motion that it would suffer a “manifest injustice” if the court prevented it from competing with Aereo.
Collyer not only disagreed with FilmOn X's arguments, but said in her opinion that Aereo “also appears to infringe plaintiffs' copyright.”
Aereo was not a party to the case in front of Collyer and is not bound by her order against FilmOn X.
The Barry Diller-backed Aereo, which uses the same technology as FilmOn X, is in the process of rolling out its service to much of the country. Unlike FilmOn X, Aereo has never been ordered to stop streaming TV shows.
FilmOn X (formerly called Aereokiller) and Aereo allow people to stream over-the-air TV to iPhones and other devices. The services' users also are able to use the
service like a DVR by “recording” programs for later viewing.
Both companies are facing lawsuits by TV broadcasters, which argue that the startups are transmitting copyrighted material without a license. The broadcasters say the startups are “publicly performing” shows -- activity that must be authorized by copyright holders.
But FilmOn X and Aereo say their services merely provide the technology that enables consumers to watch and record free over-the-air TV. Both companies rely on thousands of small antennas to capture the TV broadcasts, then stream shows to users on an antenna-to-subscriber basis.
So far, Aereo has prevailed in federal court in New York, where the 2nd Circuit ruled that the company is not “publicly” performing the TV shows because its antennas stream them on a one-to-one basis.
But FilmOn X has lost in California, where a trial judge issued an injunction banning the company from operating within nine western states. The 9th Circuit Court of Appeals is currently considering whether to lift that order.
Hearst also has sued Aereo in federal court in Boston, where the TV broadcaster is seeking an order prohibiting the Web-based service from operating. Hearst recently called the Boston judge's attention to Collyer's decision, arguing that the ruling supports the argument that Aereo infringes copyright.
But Aereo countered on Wednesday that Collyer's decision “errs in its findings.” Aereo also pointed out that the judge in Boston need not follow a ruling by a judge in Washington, D.C.