company FilmOn X is asking U.S. District Court Judge Rosemary Collyer to reconsider her order prohibiting the company from streaming TV shows in all but three states.
FilmOn X argues that
Collyer's order -- issued last Thursday -- will harm the company's ability to compete with Aereo, which also streams over-the-air TV shows. Collyer ordered FilmOn X to stop streaming TV nationwide,
except for New York, Vermont and Connecticut -- the three states within the 2nd Circuit, where judges have so far found the company's technology legal.
“Aereo, of course, is not
subject to any injunction and may continue to operate,” FilmOn X says in its court papers, which argue that Collyer's order places it at a disadvantage to Aereo.
defendants from competing with Aereo on an equal footing in this competitive, growing market is clearly a manifest injustice,” FilmOn X argues. The company says that the near-nationwide
injunction will cause it to suffer “extreme revenue losses, market share losses, loss of brand recognition, loss of customer loyalty, lost opportunities with vendors and sponsors and lost
The Barry Diller-backed Aereo, which uses the same technology as FilmOn X, is currently expanding throughout the country. But unlike FilmOn X, Aereo so far has defeated TV
broadcasters' requests for a shutdown order.
FilmOn X (formerly called Aereokiller) and Aereo allow 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. The broadcasters say the startups are “publicly performing” shows -- activity that must be authorized
by copyright holders.
But FilmOn X and Aereo say their services merely provide the technology that enables consumers to watch and record free over-the-air TV. Both companies rely on
thousands of small antennas to capture the TV broadcasts, then stream shows to users on an antenna-to-subscriber basis.
So far, Aereo has prevailed in federal court in New York, where the
2nd Circuit ruled that the company is not “publicly” performing the TV shows because its antennas stream them on a one-to-one basis.
But FilmOn X has lost in California, where a
trial judge issued an injunction banning the company from operating within nine western states. The 9th Circuit Court of Appeals is currently considering whether to lift that order.
also is facing a lawsuit in federal court in Boston, where Hearst is seeking an injunction against the company. That matter is pending.
FilmOn is asking Collyer to lift the injunction while
it appeals her decision, or to modify its scope by limiting it to the D.C. area. “This Court’s injunction is too broad,” FilmOn says in its legal papers. The company argues that the
nearly-nationwide injunction effectively denies judges in other jurisdictions the opportunity to make a decision about the technology.