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). On October 10, FilmOn X petitioned the court to trim the injunction and add Massachusetts, Rhode Island, New Hampshire and Maine to the states not covered by the September ruling. They cited the denial the same day of an injunction sought by a Hearst-owned ABC affiliate against Aereo in Massachusetts as legal justification. Five days later Collyer said “no” in slightly more words and raised the issue of contempt. In Monday’s filing, FilmOn X also couldn’t just go with the mistake defense but also raised the possibility that Collyer’s September 5 order “may reasonably be interpreted as not barring FilmOn X from operating in the First Circuit where a district court has ruled that a substantially identical service operated by Aereo, Inc. does not enable public performances; rather the performances are private.” So telling the judge she was wrong in her interpretation of her own ordered injunction? That’s probably going to go over well.
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