• by Wendy Davis  @wendyndavis, October 14, 2013

Online video startup FilmOn X is asking U.S. District Court Judge Rosemary Collyer in Washington, D.C. to revise her earlier order banning the company from streaming over-the-air TV shows to users. The start-up says a recent decision involving Aereo -- which offers a similar service -- requires Collyer to modify her order.

Collyer ruled last month that Alki David's FilmOn X seems to infringe broadcasters' copyright. She banned it from streaming TV programs in all states except New York, Vermont and Connecticut. Collyer made an exception for those three states because other judges previously ruled that Aereo can operate in those areas.

FilmOn X now says that it should be able to operate in four New England states, due to a recent pro-Aereo ruling by a federal judge in that part of the country. “This court must, in the interest of comity, defer to the judgment of its sister court,” FilmOn X says in its court papers, filed late last week. Collyer ordered the broadcasters to respond to FilmOn X's motion by Tuesday afternoon.

FilmOn X brought its motion shortly after U.S. District Court Judge National Gorton (who presides within the First Circuit) rejected a request by Hearst to shutter Aereo. He said in a 20-page ruling that Hearst, which owns the ABC affiliate WCVB, is unlikely to prevail on its claim that Aereo infringes copyright by streaming TV shows to its subscribers.

FilmOn X contends that Gorton's ruling means that its service also should be allowed to operate within the First Circuit -- which includes Massachusetts, New Hampshire, Maine and Rhode Island. “This court should immediately modify the preliminary injunction in this case to recognize that FilmOn X has the legal right to operate its service in the First Circuit,” the company argues.

Aereo and FilmOn X both offer users the ability to stream over-the-air TV programs to iPads, iPhones and other devices. The companies also offer DVR functionality, allowing subscribers to record shows and stream them later.

TV broadcasters say the services infringe copyright by publicly performing television shows without a license. But both companies say their services are legal due to their design, which relies on thousands of antennas to capture over-the-air broadcasts and stream them to users. The online companies say their streams are not “public” performances because they are made on an antenna-to-user basis.

TV broadcasters have sued Aereo in federal court in New York, Boston and Utah. The broadcasters have so far lost in New York and Boston. No decisions have been issued yet in the Utah case, which was just filed.