television service FilmOn X suffered another setback in court this week, when an appellate panel said it won't rule on the company's request to lift an injunction against it until after the Supreme
Court decides whether Aereo is legal.
The order, issued on Thursday by the D.C. Circuit Court of Appeals, leaves FilmOn X unable to stream TV shows in the U.S., except for three states: New
York, Vermont and Connecticut. The three-judge panel that stayed FilmOn X's appeal didn't state a reason for its decision.
The move came around one week after a coalition of broadcast
networks that initially sued FilmOn X sought an “emergency” stay of the company's appeal. The networks argued that it made sense to wait and see how the Supreme Court ruled in the Aereo
matter, given that any decision regarding Aereo would also affect the legality of FilmOn X.
Like Aereo, FilmOn X allows people to stream over-the-air TV shows to devices like iPhones and
iPads. TV are suing both companies for allegedly infringing copyright by retransmitting shows without a license. The broadcasters contend that Aereo and FilmOn X need licenses in order to
“publicly” perform the TV shows.
But the startups argue they are legal due to their design. Both say they have installed thousands of miniscule antennas that pick up
over-the-air broadcast signals and then stream the programs to users. Aereo and FilmOn X say their streams are “private” performances, because they are made on an antenna-to-user basis.
U.S. District Court Judge Rosemary Collyer in Washington, D.C. sided with the broadcasters and entered a preliminary order preventing FilmOn X from streaming TV shows while the lawsuit is
pending. FilmOn X is appealing that ban to the D.C. Circuit Court of Appeals.
Unlike FilmOn X, Aereo has so far prevailed in lawsuits brought by broadcasters. Last year, an appellate court
in New York refused to ban Aereo from operating, ruling that its streams are private performances. A federal judge in Boston likewise rejected a request to prohibit the company from operating in New
Last week, the Supreme Court said it would consider the broadcasters' appeal of the New York court's decision. Observers expect the Supreme Court to issue an opinion by June.
FilmOn X unsuccessfully argued that the appeals court shouldn't wait for that decision to consider
lifting Collyer's order. The company said the injunction issued by Collyer prevents it
from competing with Aereo, resulting in lost market share.
But some observers expected all pending battles concerning Aereo and FilmOn X to be put on hold until after the Supreme Court
issues a decision. Elsewhere in the country, Aereo and the broadcasters have agreed to delay their legal battles pending a Supreme Court ruling.