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D.C. Judge Won't Modify FilmOn Injunction

U.S. District Court Judge Rosemary Collyer has told FilmOn it can't deliver TV station signals to Boston as part of its online video service, despite a ruling in a district court there that Aereo could continue operating its similar TV station delivery service. The judge also asked FilmOn why she should not hold it in contempt for apparently already starting to serve up Boston TV stations before her ruling on the injunction. FilmOn countered that was only an antenna test.

Following te Massachusetts U.S. District Court decision last week to deny a broadcaster's request (in this case, Hearst) for an injunction, FilmOn said it now considered it legal to deliver stations in Boston via its similar service, despite Collyer's Spet. 5 injunction against FilmOn, which she applied to all but the Second Circuit — New York — where a Federal appeals court had denied an injunction against Aereo.

FilmOn filed an emergency motion to modify that injunction because "the Preliminary Injunction conflicts with a new decision issued on October 8, 2013 by the U.S. District Court of Massachusetts." Hearst obviously opposed the modification and Collyer agreed.

According to sources familiar with her ruling, she pointed out that the difference was between two district courts — hers and Massachusetts. She said FilmOn had provided no basis to modify the preliminary injunction. "Hearst was decided by a district court, not by the First Circuit. A contrary decision by a co-equal court in another district involving different parties does not represent a change in controlling law," she wrote in the three-page opinion.

Finally, she said, "it appears that FilmOn X may be acting in defiance of this Court's Preliminary Injunction, possibly by retransmitting Plaintiffs' copyrighted broadcast programming in the Boston area," and gave FilmOn until Oct. 21 to explain why she should not hold it in contempt for violating the injunction.

FilmOn had said it planned to ramp up Boston service. "Naturally this now allows FilmOn to fire up our Local Service," David told B&C/Multi at the time.

But David told B&C/Multi that while that had been his intent, even immediately after hearing of her denial of the motion, he will not re-start the service. "We have a plan and a little patience is needed," he said.

As to reports he had already fired up in Boston, he said FilmOn was "testing the antennas," which is why they were live but weren't anymore. Still, he said, "It is still amazing to me that it is legal for Aereo to continue and not for FilmOn." He points out that FilmOn has plenty of other channels it is delivering online even without the TV stations.