FilmOn has asked a D.C. Court to reconsider
its decision earlier this week not to modify an injunction to allow the TV
station streaming service to operate in Boston after a court there
refused to enjoin Aereo, which provides a similar service.
In a new request for modifying the injunction, FilmOn says the judge's decision
earlier this week was "clearly erroneous and would result in manifest
injustice."
D.C. U.S. District Judge Rosemary Collyer
last week denied FilmOn's motion to stay the court's injunction against the
company's streaming of local TV stations over the Web as part of its FilmOn X
online programming service. The injunction is effective in D.C. and was applied
to other markets nationwide, though not in markets in the Second Circuit, which
declined to enjoin a similar service, Aereo.
Following the
Massachusetts U.S. District Court decision earlier this week to deny a
broadcaster's request (in this case, Hearst) for an injunction, FilmOn said it
now considered it legal to deliver stations in the First Circuit as via
its similar service,
and filed an emergency motion to modify that injunction and extend the
injunction carve-out to that circuit as well. But judge Collyer denied that
motion to modify, pointing out that Massachusetts was a district
court, not a federal appeals court, and that FilmOn had provided no basis to
modify the preliminary injunction. "Hearst was decided by a district
court, not by the First Circuit. A contrary decision by a co-equal court in
another district involving different parties does not represent a change in
controlling law," she wrote in the three-page opinion.
In its latest filing
with the D.C. court, FillmOn says that the Massachusetts court found that
any such online access to TV station signals--Aereo or FilmOn--would constitute
a private performance according to First Circuit law. Filmon did not argue that
the Hearst decision was controlling law, but that it reflected the law of the
First Circuit in that it was the only
court within the First Circuit to "specifically consider and apply First
Circuit law to facts that are indisputably similar in all relevant ways to the
facts before the D.C. court," said FilmOn.
"The court
erred in refusing to modify that scope of the injunction to exclude the First
Circuit in light of Hearst," the company said.
Broadcasters have
asked the Supreme Court to weigh in on whether the Aereo/FilmOn model of
delivering TV station signals over the Internet without paying a copyright
license fee is a violation of the law. FilmOn and Aereo argue they are
providing remote, private, access to free TV station signals, not providing a
public performance.
