U.S. District Judge Rosemary Collyer on Sept. 5 ruled that FilmOn X had to stop offering subscribers broadcast streams in the Washington D.C. market, and she extended her injunction to almost every other market in the country. The exception was the New York area and the 2nd Circuit, where rulings have so far favored Aereo and have allowed it to continue offering a similar service.
So when Aereo won a ruling in the Boston area on Oct. 8, FilmOn X sought a modification of Collyer’s injunction to allow it to operate in that market, located within the 1st Circuit. In fact, later that week FilmOn X founder Alki David said in an email they were “live again with the Networks.”
Collyer not only turned down FilmOn X’s request, but she was irked that they started transmissions of broadcast programming in Boston, despite the decision there that is allowing Aereo’s similar service to continue. In a ruling on Oct. 15, she ordered FilmOn X to show why it should not be held in contempt.
In a new filing, FilmOn X says that its broadcast streams were “inadvertently accessible” during a testing process, and that it discontinued those tests “upon learning that a limited number of users in the First Circuit may have been able to access some of [broadcasters'] copyrighted programming.”
“It deactivated that testing well before this Court’s October 15 ruling and before Plaintiffs raised any objection,” FilmOn X’s attorneys said in its filing.
FilmOn X also said that it would “not be fair” to hold them in civil or criminal contempt because Collyer’s Sept. 5 order “is itself unclear and ambiguous.” Her order prevents them from “streaming, transmitting retransmitting or otherwise publicly performing” the copyrighted broadcasts, but FilmOn X says that the term “publicly performing” is left undefined. “Importantly, the order itself does not expressly contemplate the effect of subsequent court decisions on the undefined term ‘publicly performing’ in particular jurisdictions,” FilmOn X said in its filing. It is represented by Ryan Baker and Kerry Davidson of Baker Marquart.
Broadcasters have petitioned to the Supreme Court to review the Aereo decision.