Published by LawTechie - October 15, 2013 - LawTechie

internet lawLast month I wrote about a recent ruling in the Washington District Court where FOX Broadcasting secured an injunction against an Aereo-like TV streaming service (FilmOn X) in all states except New York, Vermont and Connecticut. Now, Wendy Davis at Online Media Daily reports that FilmOn X has moved the court for reconsideration on the basis of the recent Massachusetts’ District decision in favor of Aereo.


Aereo is a TV streaming service that has developed its streaming model to fall squarely within the 2nd Circuit’s Cablevision ruling. Cablevision held that rebroadcasting services did not violate copyright owners’ exclusive right of public performance so long as any particular copy of a work was transmitted only to one specific user at a time.

So Aereo set up thousands of antennas which its algorithms assigned to specific users who wanted to stream a particular TV program. You can read more about Aereo’s ingenious legal/technological design here.

Aereo initially, and predictably, won a ruling in the 2nd Circuit finding that its model fit squarely within the Cablevision ruling and, therefore, did not infringe FOX’s copyrights. FOX proceeded to sue Aereo all over the country, hoping to shut it down District by judicial District.

Most recently, Aereo rebuffed FOX once again in the District of Massachusetts.

FilmOn X

FilmOn utilizes a more or less identical model to Aereo and has, therefore, also been sued by Big Media. It most recently lost in Washington, but that court limited its injunction so as not to conflict with the 2nd Circuit’s ruling in favor of Aereo.

Now FilmOn X is asking the Washington District court to modify its ruling to allow FilmOn to continue doing business in New England (the 1st Circuit) in addition to the 2nd Circuit districts of New York, Vermont and Connecticut, on the basis of comity (that one District Court defer to the judgment of its sister courts).

It is fairly likely that Washington will accede to FilmOn’s request. If it does not, FilmOn could just sue for declaratory judgment in Massachusetts nullifying Washington’s injunction within its borders — it’s generally not a good idea for courts to get into pissing contests with one another since that’s when the Supreme Court feels like it needs to step in to set things straight.

Of course, if FOX continues to sue Aereo all over the country, and if Aereo continues to win District by District, we may see a US-wide copyright evolution without the need Supreme Court reconciliation. Definitely an interesting development and worth following.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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