FilmOn X will appeal last week’s injunction (CD Sept...
FilmOn X will appeal last week’s injunction (CD Sept 9 p18) in the U.S. District Court for the District of Columbia banning the service from streaming copyrighted material in most parts of the U.S., the company said in two emergency…
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motions filed in the court Wednesday. FilmOn asked the court to stay its injunction pending the results of the firm’s appeal, and to limit the injunction’s scope to the area covered by the U.S. Court of Appeals for the D.C. Circuit. The motions had to be filed quickly because FilmOn was ordered by the court to demonstrate its compliance with the injunction by Thursday, the company said. The injunction applies throughout the U.S. except for the 2nd U.S. Circuit Court of Appeals in New York, which has repeatedly upheld the right of competing service Aereo to stream broadcasters’ content (CD April 2 p8). The U.S. District Court should reconsider its decision to apply the injunction against FilmOn because that would give Aereo an unfair competitive advantage, said FilmOn. Aereo has announced plans to expand to major markets where FilmOn is now enjoined from offering its competing service, and Aereo “can be expected to steal FilmOn customers disappointed they can no longer use FilmOn,” said the filing. The opinion announcing the injunction also included several technical errors in its description of FilmOn’s service, the filing said. Since the same copyright issues involving FilmOn and Aereo are also being considered in a case against Aereo in the U.S. District Court in Boston, in FilmOn’s appeal of a similar injunction in the 9th Circuit in San Francisco (CD Aug 29 p5), and already decided in the Aereo case in the 2nd Circuit, it’s unfair to take this issue away from other circuits by enjoining FilmOn throughout the country, said the filing. That decisions on injunctions in similar cases have come out differently in the 2nd and 9th circuits is also evidence that FilmOn has a chance to win its appeal in D.C., said the company’s filing. “The only court of appeals to consider the issues raised in this case has decided that the technology offered by FilmOn enables only private performance and is therefore legal. Therefore … there is a substantial likelihood they will prevail on appeal.” FilmOn also asked the court to increase the $250,000 injunction bond ordered in the case. Injunction bonds are paid to the court by plaintiffs to protect the defendant if it’s later found out that a preliminary injunction shouldn’t have been granted. The injunction bond in FilmOn’s 9th Circuit case was $250,000, but FilmOn said the D.C. Circuit’s injunction merits a higher payout by broadcasters since it covers 11 circuits instead of one.