Court denies Aereo-copycat FilmOn X's request to keep running

In a ruling that upholds a preliminary injunction against FilmOn X, the judge refers to Aereo as a "similar service that also appears to infringe...copyrights."

FilmOn X, an Aereo copycat that also uses arrays of tiny antennas to stream local over-the-air broadcast television via the Internet, stumbled again in court, and the ruling may have hit Aereo with some collateral damage.

A U.S. District Court judge in Washington, D.C., on Thursday rejected FilmOn X's motion to stay a preliminary injunction or to limit the injunction to the D.C. area. Instead, the judge affirmed a preliminary injunction from earlier this week against the Aereo-like service.

The ruling solidifies a win for broadcasters that are suing not only FilmOn X (previously known as Aereokiller and BarryDriller.com) but also Aereo itself, which is backed by IAC Chairman Barry Diller and has so far been much more adept at keeping court rulings on its side.

In her opinion upholding the preliminary injunction against FilmOn X, Judge Rosemary Collyer for the U.S. District Court in D.C. questioned the decisions by another court that has sided with Aereo -- the U.S. Court of Appeals for the Second Circuit based in New York. Collyer referred to Aereo as a "similar service that also appears to infringe...copyrights" and disagreed with the appeals court's ruling, calling it "myopically focused" on how Aereo transmits programming rather than on whether the programming is a so-dubbed public performance.

The broadcasters are suing the two services for allegedly violating their public performance rights for copyrighted television programs. Aereo declined to comment on the latest decision by Collyer.

FilmOn X launched in August 2012 as a rival to Aereo. Both companies, which do not pay retransmission licensing fees to the networks, argue that they are simply providing consumers with individual antennas that let anyone watch over-the-air programming for free. Aereo charges a subscription for delivering the video streams online and storing programming as a DVR does.

The emergence of FilmOn X has been a boon for broadcasters in their fight against Aereo, which is more sophisticated in its legal approach. The major networks first sued FilmOn X quickly after its launch, and won a preliminary injunction in California in December that prevented the service from retransmitting broadcasters' signals there and in other Western states.

Collyer's injunction in D.C. expanded upon the California one by enjoining LiveOn X from operating nearly nationwide, excluding only the region where Aereo has been successful in brushing aside the broadcasters' injunction attempts.

But it isn't certain whether the D.C. and California decisions will be relevant to Aereo. In addition to the suit in New York that Aereo is fighting, it is also battling a suit in the U.S. District Court in Massachusetts. Earlier this week, it filed a response in its Massachusetts case to Collyer's injunction ruling, saying that Collyer incorrectly interpreted the copyright law and that it isn't a relevant decision in the Massachusetts court.

However, the diverging direction of opinions in the different regions raises the possibility that courts will issue directly conflicting final rulings, and this raises the prospect of the Supreme Court being called upon to be the final arbiter.

 

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