Court Delays FilmOn X Appeal, Leaves Ban In Place

Streaming television service FilmOn X suffered another setback in court this week, when an appellate panel said it won't rule on the company's request to lift an injunction against it until after the Supreme Court decides whether Aereo is legal.

The order, issued on Thursday by the D.C. Circuit Court of Appeals, leaves FilmOn X unable to stream TV shows in the U.S., except for three states: New York, Vermont and Connecticut. The three-judge panel that stayed FilmOn X's appeal didn't state a reason for its decision.

The move came around one week after a coalition of broadcast networks that initially sued FilmOn X sought an “emergency” stay of the company's appeal. The networks argued that it made sense to wait and see how the Supreme Court ruled in the Aereo matter, given that any decision regarding Aereo would also affect the legality of FilmOn X.

Like Aereo, FilmOn X allows people to stream over-the-air TV shows to devices like iPhones and iPads. TV are suing both companies for allegedly infringing copyright by retransmitting shows without a license. The broadcasters contend that Aereo and FilmOn X need licenses in order to “publicly” perform the TV shows.

But the startups argue they are legal due to their design. Both say they have installed thousands of miniscule antennas that pick up over-the-air broadcast signals and then stream the programs to users. Aereo and FilmOn X say their streams are “private” performances, because they are made on an antenna-to-user basis.

U.S. District Court Judge Rosemary Collyer in Washington, D.C. sided with the broadcasters and entered a preliminary order preventing FilmOn X from streaming TV shows while the lawsuit is pending. FilmOn X is appealing that ban to the D.C. Circuit Court of Appeals.

Unlike FilmOn X, Aereo has so far prevailed in lawsuits brought by broadcasters. Last year, an appellate court in New York refused to ban Aereo from operating, ruling that its streams are private performances. A federal judge in Boston likewise rejected a request to prohibit the company from operating in New England.

Last week, the Supreme Court said it would consider the broadcasters' appeal of the New York court's decision. Observers expect the Supreme Court to issue an opinion by June.

FilmOn X unsuccessfully argued that the appeals court shouldn't wait for that decision to consider
lifting Collyer's order. The company said the injunction issued by Collyer prevents it from competing with Aereo, resulting in lost market share.

But some observers expected all pending battles concerning Aereo and FilmOn X to be put on hold until after the Supreme Court issues a decision. Elsewhere in the country, Aereo and the broadcasters have agreed to delay their legal battles pending a Supreme Court ruling.
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4 comments about "Court Delays FilmOn X Appeal, Leaves Ban In Place".
  1. Paul Robinson from Viridian Development Corporation , January 24, 2014 at 5:52 p.m.
    I predict based on Universal Studios v. Sony, that the U.S. Supreme Court will rule in favor of Aereo, either rendering FilmOn X's appeal moot since it can now go back to the trial court using Aero's decision to vacate the trial court's decision and have it reverse in favor of them, or, the appeals court will do the same thing. Aereo and FilmOnX are doing essentially the same thing as Rent-A-Center where it rents TVs to people, only they're renting antennas, and the transmission is one antenna to one user. Their business does not involve multicast or a public performance, but on-demand single user access. And since the DVR is dedicated to one party, it clearly qualifies under Universal v. Sony as fair use.
  2. J S from Ideal Living Media , January 24, 2014 at 10:38 p.m.
    Agree entirely with Paul. Well said, sir.
  3. Colin Mann from Advanced Television Limted , January 25, 2014 at 3:53 a.m.
    The word is 'minuscule'.
  4. Michael Kilgore from FTABlog.com , January 27, 2014 at 3:45 p.m.
    Paul, I sincerely hope you're right. But if I had to wager, I'd find it hard to bet on the side of a consumer-centric upstart vs. established moneyed interests. And even if Aereo wins, that will kick Congress to pass some kind of sweeping copyright reform that may or may not allow Aereo to continue.