D.C. U.S. District Judge Rosemary Collyer has 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.
FilmOn Founder Alki David says he will comply, but that he has plenty of other channels to deliver.
FilmOn was under a Sept. 9 deadline for taking down local signals of the Big Four affiliates in all but the Second Circuit markets, but at press time on Sept. 12 it was still delivering affiliate programming streams in Washington, according to a check of the site and as reported by Michael Kilgore at FTABlog.com.
"We will of course comply with the law," David told Multichannel News. He suggested that he was waiting for the court to rule on the emergency stay, which it did Sept. 12. "We had a motion to stay. As a result of the stay motion, the order is put on ice. The decision is made so now we comply," he said.
David pointed out that he has launched local-channel service in 14 cities within the Second Circuit.
"[The injunction] doesn't really harm us...we have 600 other channels for free to the consumer as well as all the other locals in [those] 14 cities," he said. "The ruling does not stop us offering other local channels. In fact FilmOn already has deals with many Cable and OTA broadcasters.
"The networks are a must-have to be a real pro service," he conceded, "but we can wait to get them...no biggie. The other local channels, CW, PBS et. al. will all benefit."
He said he would wait for Aereo to win its legal challenge in Boston, where FilmOn already has an antenna farm.
Collyer issued the original injunction Sept. 5, concluding that FilmOn was violating copyright protections by delivering TV stations signals without permission or compensation. The injunction was sought by the Big Four broadcast networks, Gannett and Allbritton, which sued FilmOn for copyright infringement.
In its emergency motion, FilmOn sought a stay of the injunction while it appealed the decision to the D.C. federal appeals court, and absent that, a stay in all markets but the D.C. circuit.
Collyer rejected that request, saying that she continues to believe that broadcasters are likely to succeed on the merits because "[T]he Copyright Act and, in particular, the Transmit Clause are clear: 'FilmOn X transmits (i.e., communicates from mini-antenna through servers over the Internet to a user) the performance (i.e., an original over-the-air broadcast of a work copyrighted by one of the Plaintiffs) to members of the public (i.e., any person who accesses the FilmOn X service through its website or application) who receive the performance in separate places and at different times (i.e., at home at their computers or on their mobile devices).'"
The court said it disagreed with the Aereo court's decision not to enjoin that similar service.
Both Aereo and FilmOn, which took a page from Aereo's book, say that their remote TV antennas are providing subs with the over-the-air signals they are entitled to for free. Neither pays broadcasters for doing so.
Collyer said the Aereo court's reading of the Transmit Clause was "myopically" focused on the nature of the transmission, not whether the work was publicly performed. "The only change FilmOn X has identified is that Aereo, its competitor, is not enjoined. But this argument is backwards: FilmOn X claims that the Preliminary Injunction has created irreparable harm because FilmOn X will not be able to keep pace with a similar service that also appears to infringe Plaintiffs' copyrights. FilmOn X, not Aereo, is the defendant in this case; the Court has already concluded that, at least at the preliminary injunction stage, the balance of irreparable harms and the public interest favor an injunction."