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A group of major broadcasters has asked a US appellate court to defer its decision on whether to lift an injunction against Internet TV streaming service FilmOn X until after the Supreme Court rules on the legality of market counterpart Aereo.
The Emergency Motion asks the Court, on an emergency basis, to hold in abeyance all proceedings in the appeal, pending the decision in which the Supreme Court granted certiorari (re-examination of a lower court action) Friday January 10.
“If the Supreme Court decides that Aereo’s service infringes the petitioners’ copyrights, the same conclusion would be required here, thereby rendering moot any briefs already filed and any argument already held in this action,” said the broadcasters. “Conversely, if Aereo’s service were held not to infringe, any briefs already filed in this appeal would similarly need to be supplemented and the case would likely merit re-argument.”
FilmOn X has opposed the motion. “Holding these proceedings in abeyance will cause FilmOn X further irreparable harm, preventing FilmOn X from offering its services to consumers across the country,” it stated in its formal response.
Judge Rosemary Collyer for the US District Court of DC issued a preliminary injunction against FilmOn X, barring the service from retransmitting programming over the Internet. “This Court concludes that the Copyright Act forbids FilmOn X from retransmitting Plaintiffs’ copyrighted programs over the Internet,” she wrote in her decision. FilmOn X has asked the DC Circuit Court of Appeals to lift that ban.
The US Supreme Court January 10th agreed to hear the appeal filed by the broadcasters against Aereo. Mid-December 2013 Aereo filed a brief with the Court saying that it would no longer oppose an action brought the broadcasters which petitioned the Court to overturn a denied injunction regarding their contention that Aereo operates in breach of copyright. Observers expect the Supreme Court to issue an opinion by June.
FilmOn X argues that the appeals court shouldn’t wait for that decision to consider lifting Collyer’s order contending that the injunction issued by Collyer prevents it from competing with Aereo. “As a result, FilmOn X has lost market share. Should the Supreme Court ultimately side with Aereo, FilmOn X will face an extraordinary, if not impossible, uphill battle to be able to compete with Aereo.”
FilmOn X also suggests that there are differences between the two services that mean any decision in the Aereo case will not necessarily apply to its operation.“While there are similarities between Aereo’s and FilmOn X’s technologies, Aereo involves a different set of plaintiff networks, a different defendant and its own evidentiary record,” it contends.