• by Wendy Davis , Staff Writer, August 27, 2013

Online video service FilmOn X asked an appellate panel of the 9th Circuit Court of Appeals today to lift an order prohibiting the company from operating on the West Coast.

FilmOn X, like the rival service Aereo, streams TV programs to users' iPhones and other devices. TV broadcasters argue that both Web-based services infringe copyright by publicly performing TV shows without a license; only copyright holders are entitled to engage in public performances. But FilmOn X and Aereo say they're legal due to their technology, which captures and streams over-the-air programs via small antennas on an antenna-to-user basis. The companies say that the one-to-one nature of the streams means they're not public performances.

The companies argue that their systems are legal due to a ruling in a case involving Cablevision's remote DVRs. The 2nd Circuit ruled in 2008 that Cablevision's remote DVRs don't infringe copyright. The 2nd Circuit specifically rejected the argument that Cablevision engaged in a public performance by sending shows from its servers to users' TV sets.

Both Aereo and FilmOn X designed their systems to comply with that ruling. But that fact alone could also be used against the companies. Circuit Court Judge Denny Chin in New York accused Aereo of creating a system that took advantage of a perceived loophole. Chin said in a written opinion that he thought the TV broadcasters should have been granted an injunction blocking Aereo. But Chin was in the minority; the other judges on the 2nd Circuit thought that Aereo was entitled to continue operating.

Reportedly, at least one judge on the 9th Circuit also questioned whether FilmOn X was designed specifically to get around provisions of the copyright law that limit public performances. But it's not clear whether that judge believes that such a design would make the service illegal.

“Isn’t your problem that this is an innovation for the sole purpose of avoiding the statute?” Judge Brian Cogan asked FilmOn X’s lawyer today, according to Bloomberg. “Maybe you've succeeded.”