Advocacy Groups Criticize Ban On FilmOn X

by , Dec 13, 2013, 5:13 PM
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The federal judge who prohibited FilmOn X from operating didn't adequately consider the “public interest in innovation,” a coalition of nonprofits argue in new court papers.

The groups -- Public Knowledge, Electronic Frontier Foundation and Engine Advocacy -- criticize the reasoning of U.S. District Court Judge Rosemary Collyer, who issued an injunction against FilmOn X earlier this year. The nonprofits are asking the D.C. Circuit Court of Appeals to explicitly reject Collyer's rationale. They argue in a friend-of-the-court brief that endorsing Collyer's reasoning “could create a systematic bias against emerging technologies.”

The organizations make the argument in a case stemming from TV broadcasters' battle with the startup FilmOn X, which streams over-the-air TV shows to people's iPhones, iPads and other devices. TV broadcasters say FilmOn X infringes copyright by transmitting shows without a license. But FilmOn X -- like its rival, Aereo -- says its streams are legal due to its architecture. The company reportedly uses tiny antennas to capture the over-the-air shows and stream them to users.

In September, Collyer sided with TV broadcasters and issued an order prohibiting FilmOn X from streaming the networks' TV shows in the U.S., except for the states of Vermont, Connecticut and New York. The order is considered “preliminary,” because FilmOn X and the broadcasters haven't yet had a trial in the case.

FilmOn X is appealing the preliminary ban to the D.C. Circuit Court of Appeals. The company argues that its technology only enables people to do legal activity -- use antennas to watch over-the-air TV. “The television programming at issue in this lawsuit is freely available over the air,” FilmOn X argues in its papers, filed last week. “Anyone with a digital antenna and DVR within the networks' broadcast area may privately receive, record, and view their programming.

The nonprofits aren't taking a position on whether FilmOn X infringes copyright, but say that Collyer wrongly failed to consider a host of factors before banning the company. Among others, they argue that Collyer “ignored a substantial piece of the public interest at issue in this case -- public access to free-to-air programming.”

The groups add that the rollout of digital television has resulted in worse service for many customers, due to interference with signals and other technological issues. “In light of these problems, many viewers turn to cable, satellite, and other subscription TV services... But those alternatives do not serve the public interest goal of free access to broadcast programming.”

The advocacy organizations also argue that Collyer didn't give enough weight to “the public interest in promoting innovation and competition.”

“Courts should hesitate before depriving consumers and the competitive landscape of a new entrant such as FilmOn X,” the groups argue. “More broadly, injunctions such as this one threaten to chill other potential startups and their investors from entering the market.”

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