A group of TV broadcasters that are suing online video company FilmOn X say in new court papers they are entitled to an order preventing the startup from operating anywhere in the country.
“FilmOn X cannot obscure the uncontroverted fact that it allows thousands, and potentially millions, of viewers to watch the same broadcasts of some of the most valuable copyrighted programming in the world -- such as "Glee," "The Good Wife," "Saturday Night Live," "Grey's Anatomy" and thousands of other television programs,” the networks argue in court papers filed late last week with U.S. District Court Judge Rosemary Collyer in Washington, D.C. “Because FilmOn X has no license to publicly perform any broadcast programs, FilmOn X engages in copyright infringement.”
FilmOn X, like its rival Aereo, allows 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 litigation throughout the country by TV broadcasters, which argue that the Web-based services illegally transmit copyrighted material without a license.
FilmOn X and Aereo say their services don't infringe copyright. They argue that they merely provide the technology that enables consumers to engage in legal activity -- watching and recording free over-the-air TV. Both companies rely on thousands of dime-size antennas to capture the TV broadcasts, then stream shows to users on an antenna-to-subscriber basis.
FilmOn and Aereo argue that anyone is allowed to install an antenna to view over-the-air TV, and that the one-to-one nature of the streams means they are not public performances.
So far, Aereo has prevailed in federal court in New York, where a trial judge and appeals court ruled that the TV networks were not entitled to an injunction against Aereo.
But the broadcasters have prevailed so far in California, where a trial judge prohibited FilmOn X (previously called Aereokiller) from operating in nine states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. FilmOn is appealing that order to the 9th Circuit Court of Appeals, which is considering the matter.
The TV broadcasters that sued FilmOn X in D.C. are seeking to block the service throughout the country, not just in D.C. “FilmOn X operates an infringing Internet service that unlawfully retransmits plaintiffs’ copyrighted programming in nearly every federal judicial circuit,” the broadcasters argue. “An injunction that covers only the D.C. Circuit would leave Plaintiffs in the untenable position of having to relitigate this case in every other circuit where FilmOn X operates.”
Both Aereo and FilmOn X say that a 2008 court decision out of New York involving remote DVRs supports their argument. In that case, the 2nd Circuit Court of Appeals ruled that Cablevision's remote DVRs don't infringe copyright. The appellate court rejected the argument that Cablevision engaged in a public performance when it sent shows from its servers to users' TV sets. That decision led the way for Aereo to prevail in New York, but judges in other parts of the country won't necessarily follow the ruling.
The networks suing FilmOn X specifically ask Collyer to reach a different conclusion than the New York judges. The broadcasters ask Collyer to “look at the language” of the copyright statute and then come to an independent decision.