Aereo Rival to Supreme Court: What About Us?

, The Litigation Daily

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Aereo antenna array
Aereo antenna array

The U.S. Supreme Court will soon decide the fate of Aereo Inc., the start-up company that streams popular TV shows without paying a cent in retransmission fees to broadcasters. So Aereo understandably isn't thrilled that a similar company called FilmOn X LLC, which has a long and bizarre history of antagonizing Aereo, now wants to share the stage at oral argument.

The high court agreed last month to hear an appeal by American Broadcasting Companies Inc. and other broadcasters in a copyright infringement case they brought against Aereo. Now, in a 15-page motion filed on Friday, FilmOn's lawyers at the small Los Angeles firm Baker Marquart want the high court's permission to intervene in briefing and the not-yet-scheduled oral argument. (Eriq Gardner of The Hollywood Reporter first reported FilmOn's motion.)

Like Aereo, FilmOn uses thousands of tiny, individually assigned antennas to stream TV shows to subscribers. Both companies argue that their transmissions constitute a "private performance" under the Copyright Act, which only allows copyright holders to bar public performances of their work. They've also both been hit with copyright infringement suits by broadcasters such as ABC and Twenty-First Century Fox Inc. Both companies are funded by billionaires: Aereo has the backing of media mogul Barry Diller; FilmOn is the brainchild of an eccentric shipping and bottling heir named Alki David.

Despite these similarities, FilmOn wrote that it doesn't trust Aereo to adequately represent its interests. That's because of one major difference between the start-ups: Aereo has notched big defense victories against the broadcasters' copyright claims, including what could prove to be a seminal July 2012 ruling from the the U.S. Court of Appeals for the Second Circuit. FilmOn, on the other hand, is 0-2 so far at the trial-court level and faces a devastating nationwide injunction, as we explained in more detail here.

"Aereo has an incentive to leave injunctions against its primary competitor intact and may not adequately represent FilmOn X's interest before this Court," Baker Marquart's Ryan Baker wrote in Friday's motion. According to FilmOn, Aereo has said that it "would oppose any motion to intervene," while the broadcasters haven't taken a position. In an interview, Baker said he expects the oral argument to draw plenty of media coverage, and that Aereo probably doesn't want to share the spotlight with a direct competitor.

FilmOn's motion seems like a genuine attempt by the company to defend itself. But David in the past has provoked Aereo for reasons that don't make obvious sense from a business standpoint. David previously called FilmOn's digital TV service "Aereokiller." He also showcased the service at the domain name "BarryDriller.com" (that's "Driller" with a "r"). A trademark fight followed, and FilmOn eventually agreed to drop the names as part of a settlement.

Aereo is represented at the Supreme Court by David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, along with R. David Hosp and Mark Puzella of Fish & Richardson and Seth Greenstein of Constantine Cannon.

The broadcasters have Bancroft's Paul Clement and Erin Murphy (for ABC, CBS Broadcasting Inc. and NBC UniversalMedia), Bruce Keller and Jeffrey Cunard of Debevoise & Plimpton (also for ABC, CBS and NBC), as well as Paul Smith and Richard Stone of Jenner & Block (for Fox).

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