Internet TV streaming service FilmOn X has submitted a motion to the US Supreme Court requesting that its legal representatives be allowed to file briefs and address the justices in oral arguments in the forthcoming court proceedings brought by a group of broadcasters against rival service Aereo, amid fears that Aereo will use the copyright case to the detriment of FilmOn X.

The Alki David-backed service suffered a setback late January following the decision of an appellate panel that it would not rule on the company’s request to lift an injunction against it until after the Supreme Court decides on the legality of Aereo. The order means that FilmOn X is only able to stream TV shows in three US states: New York, Vermont and Connecticut.

According to the motion, although the two services have a common interest in the court in protecting an individual’s right of private performance, FilmOn X is “uniquely situated”. It is prohibited from offering its consumers access to network content across most of the United States. “Aereo is not subject to the injunctions issued against FilmOn X, which has suffered significant harm as a result of the enjoinment. Aereo has an incentive to leave injunctions against its primary competitor intact and may not adequately represent FilmOn X’s interests before this court,” it contends.

According to FilmOn X, its participation “will ensure that the viewpoints of all the necessary and appropriate parties are considered, which will advance the causes of justice and finality.” It also argues that should the nearly nationwide injunction against it remain, it will lead to “continued revenue losses, market share losses, loss of brand recognition, loss of customer loyalty, lost opportunities with vendors and sponsors and lost goodwill — All to Aereo’s benefit”.

Part of FilmOn X’s argument is that it operates as a free service, and has always been willing to negotiate appropriate content licence agreements with the broadcast networks where such agreements are required, whereas Aereo charges a monthly subscription fee and defends its right to retransmit the signals without any such agreement. FilmOn stresses that it does not seek to delay the proceedings, butmerely seeks to participate in the briefing and oral argument on appeal before the Court.

David said: “How can Aereo honestly reflect our interests? We have more content, more users, and better technology. And our service is free.” He pointed out that less than three per cent of its business in the US relied on Network Television access. “However, the right of the innovator and right for the public access to the television spectrum entrusted to the major networks, entitles us to offer this technology to consumers. Does a TV set manufacturer get sued for having free to air TV available in its tuner technology? Our commitment to this fight against the Networks is based on principle rather than anything else. The tens of millions of downloads of the various FilmOn apps is based on content that we have uniquely aggregated and licensed. Since its release Aereo’s Android app has had less than 100,000 downloads, compared to our 40 million downloads of various FilmOn apps. We offer a far more diverse and integrated content and technological offering and unlike Aereo, it’s free!”

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