FilmOn X, the Aereo rival that also offers digital streams of broadcast signals, has asked the Supreme Court that its attorneys be allowed to file briefs and address the justices in oral arguments when the networks’ case against Aereo reaches the high court this spring.
FilmOn X, founded by Alki David, has had a much different path in the courts than Aereo. Federal judges in Los Angeles and Washington have halted its offering of station signals without broadcasters’ permission, and the D.C. judge even prohibited FilmOn X from offering those streams in much of the country. After the Supreme Court agreed to take the Aereo case on Jan. 10, FilmOn X’s appeals have been frozen in place as courts wait for an opinion from the justices.
“Although FilmOn X and Aereo have a common interest in this court in protecting an individual’s right of private performance, FilmOn X is uniquely situated,” FilmOn X’s attorney, Ryan Baker of Baker Marquart, said in a motion to intervene submitted to the Supreme Court on Friday. “It has been enjoined 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.”
FilmOn X contends that its intervention would not delay the court, which has yet to schedule oral arguments in the Aereo case, although they are expected for some time in April. The company says that 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.” FilmOn X’s attorney Baker added that “it is likely that any ruling against Aereo would impair FilmOn X.”
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“Should the nearly nationwide injunction against FilmOn X remain, it will cause FilmOn X to suffer 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,” the company’s attorney said in the filing.
Oral arguments were held in August in FilmOn X’s appeal to the 9th Circuit of the Los Angeles decision. But the 9th Circuit last week said that it would not issue an opinion pending the Supreme Court’s judgment in the Aereo case.
FilmOn X is still operating as a free service, just not the major network affiliate feeds, and contends that it “has always been willing to negotiate appropriate content license agreements where such agreements are required.”
The networks have contended that Aereo and other similar services undercut their retransmission agreements with cable and satellite companies, and that the unauthorized streams of their signals violate the public performance provision of the Copyright Act.