• by Wendy Davis  @wendyndavis, January 17, 2014

Major broadcasters are asking an appellate court to hold off deciding whether to lift an injunction against FilmOn X until after the Supreme Court rules on the legality of Aereo.

“If the Supreme Court decides that Aereo’s service infringes the petitioners’ copyrights, the same conclusion would be required here, thereby rendering moot any briefs already filed and any argument already held in this action,” the broadcasters argue in what they characterize as an “emergency” motion to hold FilmOn X's appeal in abeyance. “Conversely, if Aereo’s service were held not to infringe, any briefs already filed in this appeal would similarly need to be supplemented and the case would likely merit re-argument.”

FilmOn X opposes the broadcasters' request. “Holding these proceedings in abeyance will cause FilmOn X further irreparable harm, preventing FilmOn X from offering its services to consumers across the country,” FilmOn X says in a response filed on Wednesday.

FilmOn X, like Aereo, allows people to stream over-the-air TV shows to iPhones, iPads and other devices. TV broadcasters have sued both companies, arguing that they infringe copyright by retransmitting shows without a license. The broadcasters argue that the streams offered by Aereo and FilmOn X are “public” performances, which require licenses.

But the startups argue that they are legal, due to their architecture. Both say they have installed thousands of tiny antennas that pick up over-the-air broadcast signals and then stream the programs to users. Aereo and FilmOn X argue that the streams they offer are “private” performances, because they are made on an antenna-to-user basis

U.S. District Court Judge Rosemary Collyer in Washington, D.C. agreed with the broadcasters and entered a preliminary order preventing FilmOn X from streaming TV shows while the lawsuit is pending. FilmOn X recently asked the D.C. Circuit Court of Appeals to lift that ban.

Aereo has had more success in court, where it has so far prevailed in lawsuits brought by broadcasters. An appellate court in New York recently refused to ban Aereo from operating, ruling that its streams are private performances. A federal judge in Boston likewise rejected a request to prohibit the company from operating in New England.

Last week, the Supreme Court said it would consider the broadcasters' appeal of the New York court's decision. Observers expect the Supreme Court to issue an opinion by June.

FilmOn X says the appeals court shouldn't wait for that decision to consider lifting Collyer's order. The company argues that the injunction issued by Collyer prevents it from competing with Aereo. “As a result, FilmOn X has lost market share,” the company argues. “Should the Supreme Court ultimately side with Aereo, FilmOn X will face an extraordinary, if not impossible, uphill battle to be able to compete with Aereo.”

The company also argues that a decision by the Supreme Court about Aereo won't necessarily resolve questions about FilmOn X's legality. “While there are similarities between Aereo’s and FilmOn X’s technologies, Aereo involves a different set of plaintiff networks, a different defendant and its own evidentiary record,” it argues.

University of Maryland law professor James Grimmelmann, who has followed the litigation closely, indicates that FilmOn X will have an uphill battle in opposing the broadcasters' request for a delay. “It would make a great deal of sense to stay the proceedings,” he says in an email to Online Media Daily. “FilmOn's arguments that its legal situation is substantially different from Aereo's ring hollow given how vehemently it has argued that its technology is identical.”