That’s three legal losses in a row for FilmOn X in a week. Today the D.C. District Court denied emergency stay motions by the company and its CEO Alki David against an almost nationwide injunction from a case launched by Fox Television Stations, ABC and NBC. The free-TV-over-the-Internet company was trying to stop the September 5 ordered preliminary injunction from taking effect, to have it modified it so that it covered only the court’s direct jurisdiction and to increase the amount of the bond form $250,000 to 2.75 million. The judge said No all round. “FilmOn X’s arguments are not persuasive. The Court weighed the relevant factors – likelihood of success on the merits, possibility of irreparable harm, balance of the harm, and the public interest – it its Opinion and concluded that all four considerations favor Plaintiffs. That conclusion remains in equal force now. Most importantly, Plaintiffs are likely to succeed on the merits of their claim,” said Judge Rosemary Collyer Thursday in a memo opinion accompanying her order (read them here and here). The injunction is set to take effect today though FilmOn X subscribers can still access material that the service has licenses for. Still for David, the broadcasters’ win today is a mere battle in his war with them. “They continually try to thwart innovation, destroy the first amendment and steal from the public. It is best they give up soon because it will be cheaper less bloody for them in the long run,” he told me this afternoon.
Today’s denial comes less than a week after the injunction was granted in D.C. District Court and just two days after FilmOn and David were slapped with a contempt of court ruling and an order to pay up $1.3 million in a copyright infringement and injunction settlement with CBS. The out of court fallout from that ruling saw CBS and FilmOn engaged in a war of words over who submitted what to whom and when.
In her opinion Thursday, Judge Collyer took note of the larger legal war on the horizon for streaming services that offer TV to subscribers. The judge noted the linkage that FilmOn made with the Barry Diller-owned similar Aereo streaming service – itself embroiled in legal battles with the broadcasters. “The only change FilmOn X has identified is that Aereo, its competitor, is not enjoined. But this argument has it backwards: FilmOn X claims that the Preliminary Injunction has created irreparable harm because FilmOnX will not be able to keep pace with a similar service that also appears to infringe Plaintiffs’ copyrights,”says Collyer. “FilmOn X, not Aereo, is the defendant in this case.” Perhaps, but the connection is clear to some. In fact, in a suit against Aereo by ABC Boston affiliate WCVB-TV, the Heart-owned station filed a notice on one day after Collyer issued the preliminary FilmOn X injunction to make sure their judge knew all about it and how alike they were in argument. On Wednesday, Aereo’s attorneys filed a response in federal court in Massachusetts claiming that they were not alike. The filing said that Collyer’s injunction “relies on a misinterpretation of the Copyright Act” and that the services’ actual tech are very different. Which means any day now the plaintiff will be filing more paperwork as these case head towards what could eventually be a Supreme Court showdown.