A U.S. District Court Judge has granted a preliminary injunction blocking ivi TV from streaming TV station signals without consent of retrans payments.
Major broadcast groups had filed for the injunction, saying ivi was infringing on their copyrights and causing irreparable harm.
Judge Naomi Reice Buchwald concluded in the order, released Tuesday, that ivi was "extraordinarily unlikely" to be deemed a cable system under Copyright law, and that it was posing that harm to broadcasters' business. As far as the judge was concerned, ivi was not a cable system under copyright law. "For the reasons discussed below, we conclude that ivi is not a cable system under Section 111, and thus do not reach the question of whether they are governed by the Communications Act," she said.
"The public interest will not be disserved by an injunction," the judge ruled, while also finding that the plaintiffs--broadcasters--had showed they were likely to win on the merits of their copyright claim.
"We are disappointed that Judge Buchwald chose to shut down ivi at all, much less so early in the legal process. Her decision showed clearly the ambiguities in current law and regulation which online video providers like ivi face," said John Bergmayer, staff attorney with Public Knowledge, the fair use rights group that had backed ivi.
"If competition to traditional cable service is to develop in the online distribution sector, then the Federal Communications Commission (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," he said.
Among those filing for the injunction wre NBC, CBS, Fox, ABC, The CW, PBS, Tribune, Univision, and Fischer, as well as the commissioner of baseball and studios associated with the major nets/owned station groups.
"NAB is gratified to learn that the federal court in New York has preliminarily enjoined ivi from continuing its illegal retransmission of broadcast signals over the internet,"s aid National Association of Broadcasters spokesman Dennis Wharton. "In granting the injunction, the court found that ivi should not 'be allowed to continue to steal plaintiffs' programming for personal gain until a resolution of this case on the merits'. We agree."
In addition to the copyright infringement claim, there is the question of whether the retransmissions online are subject to the FCC's retransmission consent payment regime under the Communications Act, which the judge did not get into. The FCC has yet to decide whether streaming services are cable systems subject to payments and access regs. But it suggested in the Comcast/NBCU order that oneline service lineups that compete with cable are in MVPD's future, and put online access conditions on the deal, though with enough caveats to make it palatible to Comcast.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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