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Public Knowledge Seeks Appeals Court Review of FilmOn Injunction

Labeling FilmOn an "antenna rental service," Public Knowledge has filed a friend of the court (amicus) brief asking the Federal D.C. Court of Appeals to reconsider a D.C. District court decision to block the service.

FilmOn last week filed the supporting brief in its appeal of that injunction to the federal appeals court.

Like Aereo, whose various broasdcaster court challenges have been appealed to the Supreme Court, FilmOn uses remote antennas to deliver TV station programming over the Internet. And like Aereo, FilmOn argues it is not providing a public performance requiring copyright payments, but instead is providing access to individual antennas collecting the free TV signals users are entitled to.

Public Knowledge says such services are "likely legal" (Public Knowledge also filed amici briefs in support of Aereo in its various court battles with broadcasters), but it is more concerned in this instance with the standard the district court used in issuing a preliminary injunction, which it says was misapplied and, if left standing, could discourage technological innovation.

"The court misapplied the preliminary injunction standard, invoking categorical presumptions forbidden by Supreme Court precedent and factual assumptions that, if affirmed, could create a systematic bias against emerging technologies, suppressing investment and vital risk-taking," Public Knowledge told the appeals court.

Regardless of the outcome of this case, this Court should disavow these errors..."

Public Knowledge says the court erred in presuming that the public interest in copyright protection is always served by granting injunctions, and argues that the public's interest in promoting broadcast reception would actually be harmed by an injunction—broadcasters argue it is just the opposite.

Public Knowledge also argues that broadcasters argument about losing their control of programming is "illusory," and says the court effectively circumvented the balance of harms test for injunctions by "assuming that the defendant’s conduct is infringing and that stopping that conduct would cause no cognizable harm."

"I think this brief represents the facts," said FilmOn founder Alki David. The Electronic Frontier Foundation and Engine Advocacy joined in the brief.

Although the remote/antenna/public performance issue has been appealed to the Supreme Court, there is as yet no federal appeals court split on the potential legality of the services, which one of the things the Supreme Court usually looks for in determining ripeness for review—there are definitely district court disagreements. But the Ninth Circuit is currently considering a FilmOn appeal of another district court injunction against that service. If that federal court does not overturn the injunction—David says that decision is overdue—there will be a split in the appeals courts (the Second Circuit has backed Aereo) and the Supreme Court would arguably be more likely to grant cert (hear the Aereo case).