“Contrary to the networks' contention, Aereo and FilmOn are not stealing copyrighted content, but merely providing a convenient method to access content freely available on the public airwaves,” FilmOn X argues in a friend-of-the-court brief filed last week.
FilmOn X and Aereo both allow people to stream over-the-air TV shows to iPhones, iPads and other devices. TV broadcasters are suing the companies for allegedly infringing copyright by retransmitting shows without paying fees. 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, which draws on tiny antennas to pick up over-the-air broadcast signals and stream them 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.
Both companies have faced several lawsuits, with different results. So far, Aereo initially prevailed in New York and Boston, but lost in Utah. FilmOn X initially lost in California and Washington, D.C.
The Supreme Court is slated to take up the matter on April 22, when it will hear the broadcasters' appeal of a pro-Aereo ruling issued by the Second Circuit Court of Appeals in New York. Earlier this year, the Supreme Court rejected FilmOn X's attempt to intervene in that case. But although the Supreme Court did not allow FilmOn X to participate as a party in the case, it is still able to file a friend-of-the-court brief.
FilmOn X says in its brief that consumers have the right to make personal copies of television shows under “fair use” principles. “In this case,” FilmOn writes, “the networks seek to prevent individuals from using the Internet to make personal copies of broadcast content for their own enjoyment.”