A paranoid theory about FilmOn X

Josh Wein

When a story hangs around for a while, I sometimes develop what I call a paranoid theory of it. These theories usually begin with a preposterous premise, apply that premise to the generally accepted facts of a story and result in some bizarre conclusions. It's a fun exercise and I like throwing these theories at people in the industry to see how they react. Now, you get to experience it.

This latest paranoid theory, hatched with the help of a friend, involves Aereo's tormentor FilmOn X, the Alki David-backed streaming TV site that has at times called itself Aereokiller and BarryDriller. Like Aereo, FilmOn X has argued existing copyright law allows it to lease individual antennas and DVRs to subscribers to give them online access to local TV station signals. The company has drawn headlines lately as it expands its service around the country--only to encounter injunctions from each federal court it finds itself called in front of.

The paranoid theory goes like this: What if FilmOn X is somehow being encouraged by the broadcasters to enter new markets where courts might be more sympathetic to the broadcasters' own arguments, thereby boxing Aereo out of certain territories and setting up a potential showdown at the Supreme Court?

See why I call it paranoid? (I don't actually believe it's true.)

Externally, FilmOn X is a strange-looking operation. It has a wacky CEO. He tells broadcasters they can kiss his "hairy Greek a--." Its site features a graphic video of his wife's Cesarean section operation and a step-by-step walk-through of how he "got to eat" the placenta. (You can find it yourself if you are interested.) His signature on legal documents is just a big "A."

Though it's not without financing, FilmOn also appears to lack the resources Aereo has amassed--resources that have let Aereo retain top-tier counsel to argue its case and veteran media-relations executives to manage its public image. When Fox and its peers and Aereo come to court, they bring copyright and appellate specialists from top national and boutique law firms. FilmOn brings Baker Marquart, a small firm of attorneys who clearly are no slouches themselves but also look outgunned by the legal firepower the big media companies have marshaled.

David and FilmOn even reached a settlement with the broadcast networks last year. The settlement was to resolve copyright claims against an earlier version of the service that did not use Aereo's leased-antenna model as a guide. But according to recent court documents, FilmOn paid only $250,000 of the $1.6 million it owed and was just ordered (sub. req.) to pay the full amount and held in contempt of court.

When Aereokiller first attracted attention, I dismissed it as a sideshow to the main event that was Aereo. But as FilmOn's legal battles have dragged on--the 9th Circuit Court of Appeals recently heard arguments about whether it should overturn an injunction a lower court placed on the service in California and and the company just asked the federal judge in Washington, D.C., to reconsider its injunction--media attorneys and executives grew increasingly confident about their case against it and the chances the Supreme Court would ultimately decide Aereo's legality.

So questioning the company's motives seems fair. It's hard to understand what drives its actions and public statements and who it thinks its adversaries are. Are they the media companies who are taking it to court? Or is it Aereo, the company David seemingly vowed to put out of business when he named his outfit Aereokiller?

If it's the latter, then the old military adage "the enemy of my enemy is my friend" suggests there is at least some common ground shared by David and the broadcasters he has mooned.

And if those broadcasters are not doing what they can to goad FilmOn into further legal battles, maybe they should be. The company has proved to be a much easier opponent than Aereo at the federal district court level. --Josh | +Josh Wein | @JoshWein