TV broadcasters are urging U.S. District Court Judge Rosemary Collyer in Washington, D.C. to reject FilmOn X's request to be allowed to operate in New England.
FilmOn X recently asked Collyer to revise her order banning the company from streaming over-the-air TV shows to users. The start-up says that last week's decision by U.S. District Court Judge Nathaniel Gorton in Massachusetts -- in a lawsuit involving the FilmOn X rival Aereo -- requires Collyer to modify her order.
But the TV broadcasters disagree. “Judge Gorton’s decision provides no basis for this court to modify its preliminary injunction,” they write in papers filed with Collyer on Tuesday afternoon.
The broadcasters add that Gorton's opinion is “incorrect and thinly reasoned.” “Judge Gorton’s decision provides no basis for reconsideration. It is virtually devoid of analysis,” they state in their motion.
The case in front of Collyer is one of five lawsuits under way against Aereo and FilmOn X -- startups that offer the ability to stream over-the-air TV programs to iPads, iPhones and other devices. The companies also offer DVR functionality, allowing subscribers to record shows and stream them later.
TV broadcasters say the services infringe copyright by publicly performing television shows without a license. But both companies say their services are legal due to their design, which relies on thousands of antennas to capture over-the-air broadcasts and stream them to users. The online companies say their streams are not “public” performances because they are made on an antenna-to-user basis.
Aereo has prevailed so far in New York, where a trial judge and the 2nd Circuit Court of Appeals said that the service did not appear to infringe copyright. Last week, Aereo also defeated the networks' request for an injunction in Boston -- which is within the 1st Circuit -- but that case has not reached an appeals court yet. A third lawsuit against Aereo in Utah hasn't yet yielded any decisions.
Even though FilmOn X uses virtually identical technology to Aereo, that company has lost in trial courts in Los Angeles and Washington, D.C. FilmOn X is appealing both of those rulings.
Now, with the Washington appeal pending, FilmOn X is trying to convince Collyer to loosen her ban on the company by letting it operate in the 1st Circuit -- which includes Massachusetts, New Hampshire, Maine and Rhode Island. FilmOn X argues in its motion that the pro-Aereo ruling in Boston means that FilmOn X also “has the legal right to operate its service” in that part of the country.
But FilmOn X likely faces an uphill battle in its attempt to persuade Collyer to change her mind, according to University of Maryland law professor James Grimmelmann. “Maybe I'm wrong, but I don't see the district court reversing its decision,” he says in an email to Online Media Daily. He says that the pro-Aereo Boston ruling was by a trial judge, as opposed to an appeals court, and therefore isn't binding on other judges. “Indeed, if a FilmOn case were to come before Judge Gorton, even his Aereo opinion wouldn't be binding on him.”