Judge Blocks Ivi from Streaming Broadcast Stations
IVI TV is not a cable system under the Copyright Act, a federal judge in New York said in an order granting a temporary injunction against the company selling live online video streams of some broadcast stations and other programming. The injunction was sought by broadcasters, studios and sports leagues. Ivi had argued it was entitled to carry the stations under the statutory license in Section 111 of the act. “Many companies have constructed business models revolving around the use of new technologies and the statutory license,” U.S. District Judge Naomi Buchwald of New York wrote. “Some new technologies have been found to fall within Section 11. Others have motivated Congress to devise separate licensing schemes to address the unique issues they present."
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"No technology, however, has been allowed to take advantage of Section 11 to retransmit copyrighted programming to a national audience while not complying with the rules and regulations of the FCC and without consent of the copyright holder,” the jurist wrote. Ivi said it plans to appeal the decision to the 2nd U.S. Court of Appeals, also in New York, and explore congressional and administrative solutions.
The order pleased broadcasters and disappointed Ivi’s supporters. “NAB is gratified to learn that the federal court in New York has preliminarily enjoined ivi from continuing its illegal retransmission of broadcast signals,” a spokesman said. Public Knowledge staff attorney John Bergmayer said Buchwald’s order “showed clearly the ambiguities in current law and regulation which online video providers like ivi face.” The FCC and the Copyright Office “are going to have to move quickly to update their rules to conform to the realities of new technology and consumer choice” if competition to traditional pay-TV operators is to develop online, he said.
The idea that a service such as Ivi’s is entitled to a statutory license is counter to recent holdings by the Copyright Office, Buchwald wrote. “The compulsory license for cable systems is intended for localized retransmission service,” and can’t be used for national distribution, she said.
The court stopped short of saying Ivi’s services are governed by the Communications Act. “Such a finding would appear to be at odds with the views of both the Copyright Office and the FCC,” Buchwald said. She cited the Media Bureau’s June order denying preliminary relief in a dispute between Sky Angel and Discovery Communications as evidence of the FCC’s position on the matter. Though Sky Angel’s service differs from Ivi’s in many respects, “if anything, these differences would appear to make Sky Angel even more like a traditional cable system than Ivi,” Buchwald said in a footnote to the order. Buchwald declined to address the plaintiffs’ arguments that Ivi interferes with their distribution of programming outside the U.S. “While this would certainly be a significant harm, the present record does not demonstrate that plaintiff’s programming is available outside the United States,” she said.
But Buchwald overstepped her constitutional authority, Ivi CEO Todd Weaver said. “Judge Buchwald makes the legal mistake of misinterpreting the copyright law to instead make communications policy,” he said in a written statement. “Communications policy is the province of the FCC and, by basing a judicial copyright decision on communications regulations to be administered by the FCC, the judge is overstepping her constitutional authority.” Ivi told its customers Tuesday that it is suspending billing for its ivi Air and ivi Pro services “so it is not necessary to cancel subscriptions. As soon as we can restore the channels we will resume the subscriptions.”