• by Wendy Davis  @wendyndavis, February 3, 2014

Streaming television service FilmOn X is seeking to get involved in the upcoming Supreme Court battle between Aereo and TV broadcasters.

In a motion filed with the court on Friday, FilmOn X argues that it should be able to intervene in the case, given that its business will be affected by any court ruling. “In light of the similarities between their services and technological architecture, FilmOn X has a strong interest in how this court ultimately rules,” the company argues in its request.

FilmOn X also claims that its interests won't adequately be represented in the Supreme Court by the Barry Diller-backed Aereo, given the potential competition between the two companies.

Both companies allow people to stream over-the-air TV shows to iPhones, iPads and other devices. TV broadcasters have sued both startups, arguing that they infringe copyright by retransmitting shows without a license. The broadcasters say the streams offered by Aereo and FilmOn X are “public” performances, which require licenses.

But the startups contend that they are legal due to their architecture. Both say they 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.

So far, Aereo has prevailed in courts in New York and Boston. But TV broadcasters have prevailed at a preliminary stage against FilmOn X in Los Angeles and Washington, D.C., where judges have issued orders prohibiting the company from operating.

The Supreme Court recently agreed to hear the TV broadcasters' appeal of a pro-Aereo ruling by the 2nd Circuit Court of Appeals in New York. That court is expected to issue a decision in June.

For now, the different court decisions have left Aereo able to operate in most of the country, but left FilmOn X prohibited from streaming TV shows in all but three states -- New York, Connecticut and Vermont. FilmOn X is appealing the bans, but the appeals are on hold, pending a Supreme Court decision about Aereo.

FilmOn X argues in its motion to intervene that its interests differ from Aereo's due to the court orders that prevent FilimOn X from operating. “FilmOn X is uniquely harmed by the injunctions issued against it and is therefore differently situated than Aereo, which is currently free to operate across the nation,” the company argues.

University of Maryland law professor James Grimmelmann, who is closely following the case and plans to file a friend-of-the-court brief, calls FilmOn X's argument “weak bordering on frivolous.”

“FilmOn has claimed strenuously that its technology is all but indistinguishable from Aereo's,” he says in an email to Online Media Daily. “If so, then FilmOn really is similarly situated to Aereo for purposes of the appeal, and Aereo will adequately represent FilmOn's legal position (which has always been an imitation of Aereo's).”

An Aereo spokesperson said the company had no comment on FilmOn X's application.

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