In a declaration filed on Thursday, Oct. 18 with U.S. District court Judge Rosemary Collyer, FilmOn Network says her decision to uphold a ban on the company’s free over-the-air streaming television service was “clearly erroneous and would result in manifest injustice.”

A Massachusetts U.S. District Court decision earlier in the week denied Hearst’s request for an injunction against Aereo, a service which similarly streams over-the-air programming for a fee, to operate in the 1st Circuit (which includes Massachusetts  New Hampshire, Maine, and Rhode Island). FilmOn argued the decision made it legal for it to operate in the region as well and that the court’s decision supported the fact that online access to TV signals via FilmOn or Aereo constitutes private performance and therefore does not violate the broadcaster’s copyright.

Collyer had previously banned FilmOn from streaming TV outside of the 2nd Curcuit states of New York, Vermont, and Connecticut where Aereo was favored in a ruling that their service does not infringe on copyright. On Tuesday, Collyer FilmOn’s request to lift the ban in the 1st circuit, saying that a ruling in favor of Aereo doesn’t require her to lift the ban on FilmOn.

FilmOn filed statements Thursday explaining that it conducted tests of its technology in the Boston area despite the ban during the week of Oct. 14. CEO Alki David writes, “The testing was only done within the geographic limits of the First Circuit periodically over a span of two to three days, and only so that defendants could begin offering their services immediately if the order was modified.”

In an interview with OnlineMediaDaily, University of Maryland professor James Grimmelmann said of the testing, “I can’t imagine this will help FilmOn’s attempt to have the injunction modified.”

But David calls the ruling unfair, saying, “The practical effect of this Court’s nationwide injunction is to prohibit FilmOn X from operating in the First Circuit where a sister court has issued a ruling that allows FilmOn X’s competitor, Aereo, to engage in the exact same conduct.”

At a recent New York Law School panel about the legality of the services FilmOn and Aereo provide, David spoke to legal experts via Skype saying: “You can’t steal something that is free.”

Watch Boston area TV free via FilmOn now:

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