• by Wendy Davis , December 6, 2013

The federal judge who recently prohibited online video company FilmOn X from operating “misunderstands FilmOn X's technology and misinterprets the plain language of the Copyright Act,” the start-up argues in papers filed this week with a federal appellate court.

FilmOn X is asking the D.C. Circuit Court of Appeals to lift an injunction issued in September by U.S. District Court Judge Rosemary Collyer. Siding with TV broadcasters, she prohibited FilmOn X from streaming the networks' TV shows in the U.S., except for the states of Vermont, Connecticut and New York.

Both Aereo and FilmOn X stream free broadcast TV to users' iPhones and other devices. The companies also allowed people to “record” shows for later viewing.

TV broadcasters have sued both companies, arguing that they infringe copyright by retransmitting shows without a license. The broadcasters argue that the streams offered by Aereo and FilmOn X are “public” performances, which require a license by the content owner.

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

While Collyer ruled against FilmOn X, other judges have sided with Aereo. An appellate court in New York recently refused to ban the company from operating, ruling that its streams are private performances. A federal judge in Boston likewise rejected a request to prohibit Aereo from operating in New England.

FilmOn X says in its latest court papers that Collyer's ruling prevents individual consumers from using “new technology to privately perform the networks’ copyrighted works.”

“The television programming at issue in this lawsuit is freely available over the air,” FilmOn X argues. “Anyone with a digital antenna and DVR within the networks' broadcast area may privately receive, record, and view their programming. FilmOn X provides consumers with the same technology those users may otherwise implement in their own homes.”

The company also says that the near-nationwide injunction is too broad, given that Aereo is rolling out its service to much of the country. “Even if this decision is otherwise affirmed, the injunction should be limited to the D.C. Circuit,” FilmOn X argues. “The scope of the current injunction ... places defendants at a stark, unfair competitive disadvantage with their main competitor, Aereo, which is free to offer its product in the same geographic markets in which FilmOn X has been enjoined.”