FilmOn X continued to blaze a unique legal path for itself and potentially its rival Aereo. The company was held in contempt of court and threatened with a $20,000 per-day fine for violating a judge's injunction against its service in October. Separately, FilmOn X sued Window to the World Communications, the licensee of PBS affiliate WTTW-TV Chicago.
D.C. District Court Judge Rosemary Collyer admonished FilmOn X for violating her injunction when it began carrying some Boston TV station programming after a federal judge in Massachusetts declined to block rival Aereo from operating. If FilmOn X violates Collyer's injunction again, it will face fines of $20,000 a day.
Meanwhile, the Alki David-backed FilmOn X asked a federal judge in Illinois to rule that FilmOn X's system does not violate copyright law. Like Aereo, FilmOIn X argues that because it leases a remote antenna and DVR to subscribers, its transmission of local TV station broadcasts do not constitute a "public performance" under federal copyright law and are therefore legal.
"Moving a user's antenna and DVR from the user's home to another location does not render that user's private performance public," it said in a brief filed with the Northern District of Illinois. "Declaratory judgment is necessary to clear the air of this controversy and protect the right of private performance."
FilmOn isn't the first online video upstart to ask a federal court for a declaratory judgment saying its service complies with copyright law. In 2010, ivi Inc. asked a federal judge in Seattle for a similar ruling. Ivi argued it should be considered a cable system and therefore entitled to carry local TV stations as long as it paid a statutory royalty.
That's a far different legal theory than the one has FilmOn X has put forward. But it's not clear whether FilmOn X's case will have a different result. Ivi never prevailed in court and appeared to have exhausted its legal options when the Supreme Court declined to take its case.
Broadcasters have asked the Supreme Court to step in to resolve their legal dispute with Aereo. If the high court acts, it could make FilmOn X's latest legal maneuver moot.
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