Alki David‘s streaming service will get a chance to participate in the broadcasters’ case against Aereo before the Supreme Court on April 22. FilmOn X filed a motion for leave to intervene in early February on the potential game-changer of a case. At the time, its argument was that while FilmOn X has been slapped with injunctions from offering over-the-air broadcast signals via the Internet, similar service Aereo has not and it would not fairly argue in favor of David’s company in front of SCOTUS. The Court disagreed today after considering the motion in conference Friday. Like in the January decision by the Court to hear the case and the arguments themselves in April, Justice Samuel Alito was recused from the FilmOn ruling because his family owns Disney stock.
Alki David‘s streaming service “merely seeks to participate in the briefing and oral argument” at the high court it says in a motion to intervene. The main reason: Courts have enjoined FilmOn X from offering over-the-air broadcast signals via the Internet, but have not put a similar restriction on Aereo. FilmOn X is appealing the decisions from the Ninth Circuit and the D.C. Circuit. Still, it says, “Aereo has an incentive to leave injunctions against its primary competitor intact and may not adequately represent FilmOn X’s interests before this Court.” The company adds that it doesn’t want to delay the case. Broadcasters say that Aereo and FilmOn infringe on their copyrights by profiting from their programming, without paying a license fee. The companies counter that they simply lease antennas and other technologies that consumers clearly have a right to use to watch the local station programming for free.
A federal judge today found the Alki David-run free-TV-over-the-Internet company in contempt of court for violating a nearly nationwide ban. Hoping to avoid Judge Rosemary Collyer’s wrath, FilmOn X claimed in late October that it was system error that led to copyrighted programming from Fox, NBC and ABC being played on the service in the Boston area in September. Despite her order on September 5 for FilmOn X to go dark everywhere but in New York, Connecticut and Vermont, the DC-based judge did not impose a fine on the company for its one-day indiscretion. Collyer did say in a hearing Monday that she would fine FilmOn X $20,000 a day if there was a repeat of the mistake — intentionally or not.
On day of the deadline set by a federal judge last week to explain why she shouldn’t hold FilmOn X in contempt of court for violating a nearly nationwide ban, the Alki David-run free-TV-over-the-Internet company basically said “Oops.” Calling the looming contempt “a drastic remedy,” FilmOn X on Monday said it was simply a mistake that it had copyrighted programming from Fox Broadcasting, ABC and NBC playing in the Boston area after DC-based Judge Rosemary Collyer’s order on September 5 to pull the plug everywhere but in New York, Connecticut and Vermont. “At worst, FilmOn X’s testing of its software inadvertently allowed a limit number of users in the First Circuit to access copyrighted programming for a brief period of time after the Hearst decision. Upon discovering that this error had occurred, FilmOn X immediately and voluntarily took corrective action before Plaintiffs brought this issue to this Court’s attention,” said the 15-page response filing from the company (read it here).
FilmOn X didn’t gain any traction from Aereo‘s legal win in Massachusetts last week. In fact, today’s decision by a DC-based federal judge to deny the Alki David-run free-TV-over-the-Internet company a modification to the almost nationwide preliminary injunction ordered on September 5 might have landed FilmOn X in more legal hot water. “It appears that FilmOn X may be acting in defiance of this Court’s Preliminary Injunction, possibly by retransmitting Plaintiff’s copyrighted broadcast programming in the Boston area,” the 3-page ruling (read it here) from Judge Rosemary Collyer said, referring to her ruling last month in favor of Fox Broadcasting, ABC and NBC. The judge is giving FilmOn X 6 days to explain why she shouldn’t hold them in contempt of court.
The latest legal hand-slap comes after FilmOn X on October 10 petitioned the court to add Massachusetts, Rhode Island, New Hampshire and Maine to the states not covered by the injunction. It cited the October 10 denial of an injunction sought by a Hearst-owned ABC affiliate against Aereo in Massachusetts as legal justification, but today the judge distinctly disagreed and told FilmOn X to check its facts and courts.
The government may be shut down but the streaming wars are going on and on in the nation’s capital. Broadcasters today petitioned the Supreme Court over Aereo and fellow streaming service FilmOn X is also back asking a DC-based federal judge to lift some of the almost nationwide injunction she imposed back in early September. The Alki David-run free-TV-over-the-Internet company is using the recent Aereo win against a Hearst-owned ABC affiliate in the federal Massachusetts District Court as their legal wedge. “Hearst v. Aereo is the law of the First Circuit. Pursuant to that law, FilmOn X’s service is legal; the performances rendered by FilmOn X users are private; and they do not infringe on any copyright. Accordingly, this Court should immediately modify the Preliminary Injunction in this case to recognize that FilmOn X has the legal right to operate its service in the First Circuit in accordance with Hearst v. Aereo,” said the Emergency Motion (read it here) to modify the scope of Judge Rosemary Collyer’s injunction. “It is well established that a preliminary injunction should be modified where a new decision is issued that would render the continuance of the injunction in its original form inequitable,” the 14-page motion filed Thursday further argued. A previous FilmOn X stay against the injunction was rejected by Judge Collyer …