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 in mid-September.
With the recent win of the Barry Diller-backed service in New England, that means FilmOn X want Massachusetts, Rhode Island, New Hampshire, Maine removed from the September 5 injunction. Those four states would join the already excluded New York, Connecticut and Vermont. The trio fall under the geographical jurisdiction of the Second Circuit, which in July 2012 found denied broadcasters’ desire for a preliminary injunction against Aereo. That decision was upheld on appeal in early April. The irony, as it is, is that the Hearst-owned WCVB-TV tried to incorporate the September injunction against FilmOn X in their ultimately unsuccessful request for a preliminary injunction against Aereo in their region. Even more amusing is that Aereo CEO Chet Kanojia was reluctant last month to draw too close a comparison between his service and David’s FilmOn X. Ryan Baker of the LA firm Baker Marquart LLP is representing FilmOn X in this most recent motion.