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FilmOn wants in on Aereo appeal

FilmOn impresario Alki David has enjoyed playing the gadfly to Aereo and tweaking Aereo financial backer Barry Diller, first naming his knockoff BarryDriller, then Aereo Killer before settling on the current moniker. And now he wants in on Aereo’s action before the Supreme Court. On Monday, FilmOn filed a petition with the court asking to intervene in the case and to be heard at oral arguments even though FilmOn is not a named party in the proceedings.

From the petition:

As a practical matter, the precedential effect of this appeal may impair or impede FilmOnX’s interest. This case is only one of several related copyright lawsuits filed against Aereo and FilmOn X in jurisdictions across the country. In all these suits, the Networks seek to prevent Aereo and FilmOn X from providing innovative internet-based services that make it easier for consumers to record and watch broadcast programming. Although this Court conceivably could decide this appeal in a narrow manner limited to Aereo, it is likely that any ruling against Aereo would impair FilmOn X. The Networks made that very argument to the D.C. Circuit, which then held FilmOn X’s appeal in abeyance. The Ninth Circuit then issued similar orders. Unable to proceed with its appeals before the D.C. and Ninth Circuits, FilmOn X respectfully requests the opportunity to present its case to this Court.

The petition then goes on to argue that FilmOn’s interests cannot adequately be represented by Aereo:

[A]lthough FilmOn X and Aereo have a common interest in this Court protecting an individual’s right to private performance, FilmOn X and Aereo’s interest diverge in other respects. FilmOn X is uniquely harmed by the injunctions issued against it and is therefore differently situated than Aereo, which is currently free to operate across the nation…As FilmOn X’s competitor, Aereo has an obvious business incentive to leave the injunctions against FilmOn X intact.

Whatever you think of how David and FilmOn X have sought to compete with Aereo, or the infringement cases brought against them by the networks, in this case FilmOn X has a point. As a procedural matter, the Aereo case almost certainly wouldn’t be before the Supreme Court at this point but for FilmOn X.

Left to itself, Aereo was doing pretty well in the courts. It won big before the Second Circuit and had run the table against the networks in their efforts to get injunctions against it in other federal circuits. It was only the network’s success in their lawsuits against FilmOn, and the injunctions against it, that created the sort of division among federal circuits over the legal questions involved that typically attracts the Supreme Court to a case.

If not for the FilmOn cases, the networks likely would have had a much harder time persuading the court to grant cert. in the Aereo cases, at least until another federal circuit court ruled differently from the Second Circuit, which would have left the Second Circuit’s ruling in Aereo to stand indefinitely.

Aereo may now welcome Supreme Court review, but it’s unlikely to welcome FilmOn into the court room.