• by Wendy Davis  @wendyndavis, August 16, 2013

Online video company FilmOn X is arguing that it should be allowed to continue operating while a lawsuit against the company is pending in federal court in Washington, D.C.

The startup is asking U.S. District Court Judge Rosemary Collyer to reject a request by TV broadcasters to prohibit the service from operating. FilmOn says in its court papers, filed on Thursday, that the broadcasters can't show that they are “likely to succeed on the merits” -- which is necesary in order to obtain an injunction before there has been a trial.

FilmOn X, formerly called Aereokiller, filed the papers in response to a lawsuit brought in May by a coalition of broadcasters. FilmOn, like rival company Aereo, allows users to stream over-the-air TV to iPhones and other devices. Subscribers also are able to use the service like a DVR by “recording” programs for later viewing.

Both startups are facing several legal challenges from broadcasters; they argue that the companies are transmitting copyrighted material without a license. So far, Aereo has prevailed in federal court in New York, where the company defeated the TV networks' request for an injunction, but the broadcasters won a preliminary round in California. FilmOn has appealed that order to the 9th Circuit Court of Appeals, which is considering the matter.

The legal arguments in all of the lawsuits are virtually identical. The broadcasters argue that the companies shouldn't be able to give “public performances” of copyrighted material without paying retransmission fees.

But FilmOn X and Aereo say their services are legal on the ground that they only provide the technology that enables consumers to engage in legal activity -- watching and recording free over-the-air TV. Both companies rely on thousands of dime-size antennas to capture the TV broadcasts, then stream shows to users on an antenna-to-subscriber basis.

FilmOn and Aereo argue that anyone is allowed to install an antenna to view over-the-air TV, and that the one-to-one nature of the streams means they are not public performances.

“FilmOn X’s technology only enables transmission to individual users at their direction, which constitutes private (not public) performance,” the company argues in its most recent papers. “Through FilmOn X’s technology, a user may remotely record and privately view television programming the user indisputably has the right to record and view.”

Both Aereo and FilmOn X say that a 2008 court decision out of New York involving remote DVRs supports their argument. In that case, the 2nd Circuit Court of Appeals ruled 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. That decision paved the way for Aereo's victory in New York, but judges in other jurisdictions need not follow it.