• by Wendy Davis  @wendyndavis, March 26, 2013

Barry Diller's streaming video service Aereo won a significant courtroom victory last year, when a federal judge in New York rejected TV networks' request to prohibit the service from launching its new video-on-demand offering.

But a rival online video service based in California, Alki David's “Aereokiller,” hasn't fared as well in court. Late last year, U.S. District Court Judge George Wu in the Central District of California issued an injunction banning Aereokiller from moving forward with its cord-cutting enterprise.

Aereokiller is appealing that ruling to the 9th Circuit Court of Appeals. “The public has an absolute and unfettered right to receive, copy and watch broadcast programming at any time,” Aereokiller argues in legal papers filed earlier this month.

This week, the startup got a boost from the digital rights group Electronic Frontier Foundation, which submitted a friend-of-the-court brief arguing that the injunction should be lifted.

The EFF argues that TV networks should not be able to “regulate personal, everyday uses of free television broadcasts.” The group adds that it makes no sense for Aereo to be legal in New York, while the virtually identical Aereokiller is deemed illegal in California.

Aereokiller, like Aereo, offers paying subscribers the ability to stream over-the-air broadcast channels to iPads, iPhones and other devices. The services also offer DVR-like functionality by enabling users to view programs on demand.

The TV networks have sued both startups for copyright infringement, arguing that they engage in a public performance by streaming the TV shows. Only content owners are allowed to publicly perform a work.

Aereo and Aereokiller both counter that their technology is legal based on its design. Both companies installed thousands of small antennas within the cities where they intended to operate. The companies capture free, over-the-air shows with those antennas, and then stream the shows on demand.

Aereo and Aereokiller argue that anyone is allowed to install an antenna to view over-the-air TV. They also argue that their streams to users are legal because the streams are made on an antenna-to-user basis. Aereo and Aereokiller say that the one-to-one nature of the streams means they're not public performances.

Both companies say that an earlier decision involving remote DVRs supports their argument. In that case, the 2nd Circuit Court of Appeals ruled in 2008 that Cablevision's remote DVRs don't infringe copyright. The appellate court specifically rejected an argument that Cablevision's act of sending shows from its servers to users' TV sets was a public performance.

A trial judge in New York -- which is within the 2nd Circuit's jurisdiction -- found that Aereo's service was covered by that ruling. (The networks are appealing that decision.)

But Aereokiller is fighting the lawsuit in a different jurisdiction -- the 9th Circuit Court of Appeals -- which hasn't yet ruled on whether remote DVRs are legal.