• by Wendy Davis  @wendyndavis, November 25, 2013

FilmOn X, which recently lost battles over its streaming service in Washington, D.C. and Los Angeles, is hoping for better luck in federal court in Illinois.

Late last week, the streaming service filed an action against a PBS affiliate in federal court in Illinois, where the startup is asking for a declaratory judgment that it doesn't infringe copyright. FilmOn X says it was accused of copyright infringement in a letter sent by the station WWCI, a licensee of the Chicago-based PBS affiliate Windows to the World.

That broadcaster “is mistaken,” FilmOn X says. “FilmOn’s service allows users to access free-to-air programming via the use of an antenna that is functionally a modern high-tech version of the traditional TV antennas that have been in legal use in the United States for decades,” FilmOn X argues in its court papers.

FilmOn X, like its rival, Aereo, allows users to stream over-the-air TV shows to iPhones, iPads and other devices. The Web-based companies also provides DVR-like functionality, enabling people to “record” shows and watch them later.

Broadcasters have sued both companies for allegedly infringing copyright by publicly performing programs programs without a license. Only copyright holders are allowed to publicly perform programs. But the companies say their streaming services are legal based on their technology.

FilmOn X and Aereo use thousands of tiny antennas to capture and stream over-the-air broadcasts. The companies argue that their streams are not public performances but private ones, because they are made on an antenna-to-user basis.

So far, the 2nd Circuit Court of Appeals has sided with Aereo, as has a federal district court judge in Boston. In both of those actions, courts have rejected broadcasters' requests to prohibit Aereo from operating.

But judges in Washington, D.C. and California have ruled against FilmOn X and enjoined the company from streaming programs owned by the broadcasters who filed suit. FilmOn X has appealed both of those rulings.

Given the different results in various locales, it makes sense for FilmOn X to take the offensive by bringing a case in a location where the company believes it stands a chance of winning, says University of Maryland law professor James Grimmelmann. “FilmOn X is trying to have the case heard in a circuit where the law on public performance is more favorable to it,” he says in an email to Online Media Daily. “If it didn't file suit first, WWCI might simply have sued FilmOn X in California.”

He adds that the 7th Circuit -- the federal appellate court covering Illinois -- hasn't directly addressed FilmOn X's technology. But he says that a ruling last year in favor of the Web company myVidster.com could bode well for FilmOn X. In that case, a panel of the court said it was “odd to think that every transmission of an uploaded video is a public performance.”

The judges in that case also urged Congress to clarify the meaning of public performance.