FilmOn Files New Motion To Modify Injunction

Tells D.C. Court Decision Not Allowing It To Operate in First Circuit Was Wrong and Manifestly Unjust

FilmOn has asked a D.C. Court to reconsider its decision earlier this week not to modify an injunction to allow the TV station streaming service to operate in Boston after a court there refused to enjoin Aereo, which provides a similar service.

In a new request for modifying the injunction, FilmOn says the judge's decision earlier this week was "clearly erroneous and would result in manifest injustice."

D.C. U.S. District Judge Rosemary Collyer last week denied FilmOn's motion to stay the court's injunction against the company's streaming of local TV stations over the Web as part of its FilmOn X online programming service. The injunction is effective in D.C. and was applied to other markets nationwide, though not in markets in the Second Circuit, which declined to enjoin a similar service, Aereo.

Following the Massachusetts U.S. District Court decision earlier this week to deny a broadcaster's request (in this case, Hearst) for an injunction, FilmOn said it now considered it legal to deliver stations in the First Circuit as via its similar service, and filed an emergency motion to modify that injunction and extend the injunction carve-out to that circuit as well. But judge Collyer denied that motion to modify, pointing out that Massachusetts was a district court, not a federal appeals court, and that FilmOn had provided no basis to modify the preliminary injunction.

"Hearst was decided by a district court, not by the First Circuit. A contrary decision by a co-equal court in another district involving different parties does not represent a change in controlling law," she wrote in the three-page opinion.

In its latest filing with the D.C. court, FillmOn says that the Massachusetts court found that any such online access to TV station signals--Aereo or FilmOn--would constitute a private performance according to First Circuit law. FilmOn did not argue that the Hearst decision was controlling law, but that it reflected the law of the First Circuit in that it was the only court within the First Circuit to "specifically consider and apply First Circuit law to facts that are indisputably similar in all relevant ways to the facts before the D.C. court," said FilmOn.

"The court erred in refusing to modify that scope of the injunction to exclude the First Circuit in light of Hearst," the company said.

Broadcasters have asked the Supreme Court to weigh in on whether the Aereo/FilmOn model of delivering TV station signals over the Internet without paying a copyright license fee is a violation of the law. FilmOn and Aereo argue they are providing remote, private, access to free TV station signals, not providing a public performance.