Judge Rules Against ivi.tv

February 22, 2011

NEW YORK: A federal judge has shut down ivi.tv, the Seattle-based streamer redistributing broadcast TV signals without permission. The company had claimed the right to do so under collective copyright law, having defined itself as an online cable provider. NBC, ABC, CBS, Major League Baseball and several other TV groups sued ivi.tv, seeking to shut down the service while the courts determined whether it meets the legal definition of a cable operation.

Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York ruled in favor of the networks.

“As it is extraordinarily unlikely that ivi will ultimately be deemed a cable system under Sec. 111, plaintiffs have demonstrated a likelihood of success on the merits of their copyright claim,” Judge Buchwald wrote. “They also have demonstrated irreparable harm, that the balance of hardships tip in their favor, and that the public interest will not be disserved by an injunction.”

Sec. 111 of the Copyright Act provides certain TV signal retransmission rights to any facility in the United States “that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.”

ivi.tv has launched service in Seattle, New York and Los Angeles, and planned to do so in Philadelphia and Chicago. ivi carries signals from ABC, NBC, CBS, Fox, CW and PBS affiliates. Its service costs $5 a month and is available via a downloable app.

ivi filed suit against broadcasters in U.S. District Court in Seattle seeking an affirmation of its legal definition as a cable operation. Broadcasters then filed with the New York court.

Several consumer lobbies supported ivi.tv, and Public Knowledge, a Washington, D.C. public-interest think tank, expressed disappointment with the ruling. Public Knowledge and three other such organizations had filed amicus briefs with the New York court, advocating for ivi.tv.

“We are disappointed that Judge Buchwald chose to shut down ivi at all, much less so early in the legal process,” said PK staff attorney, John Bergmayer. “Her decision showed clearly the ambiguities in current law and regulation which online video providers like ivi face.

“If competition to traditional cable service is to develop in the online distribution sector, then the FCC and Copyright Office are going to have to move quickly to update their rules to conform to the realities of new technology and consumer choice.”

-- Deborah D. McAdams

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