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Policy

U.S. Judge Says Ivi Is No ‘Cable System’

2/28/2011 12:01 AM Eastern

Washington — A federal judge said Ivi TV must stop
streaming TV station signals without consent or making
retransmission payments, though the company said it
would appeal the preliminary injunction.

Major broadcast
groups sought the injunction,
claiming Ivi
was infringing on their
copyrights and causing
irreparable harm.

Cable operators have
a dog in the fight, as well.

Judge Naomi Reice
Buchwald, a judge in the U.S. District Court for the
Southern District of New York, concluded in the order,
released last week, that Ivi was “extraordinarily
unlikely” to be deemed a cable system under copyright
law.

As far as the judge was concerned, Ivi was definitely
not a cable system under copyright law.

That meant the judge did not have to answer the
second question of whether Ivi was governed by the
Communications Act.

Ivi contends it is a cable operator and, for a $100
blanket license fee, can retransmit TV-station signals.
It also argues it is not a cable operator by the Federal
Communications Commission’s defi nition, and thus
not subject to its retransmission-consent regime.

Were that argument to hold up and be applied to
online streaming services, it would mean online
program delivery services that compete with cable
could do so without the extra costs associated with
the growing retransmission payments broadcasters
are demanding.

Alternate platforms could either gain a big price
advantage over cable or drive traditional multichannel
providers to seek the same model to avoid paying
stations.

The FCC signaled in the conditions it imposed on
Comcast’s merger with NBC Universal that it expects
so-called OVDs (online-video providers) to become
competitors to traditional cable.

“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,”
Public Knowledge, which supports Ivi’s cause, said
last week.

The FCC has yet to weigh in on whether an online
streaming service is a cable system — though the Media
Bureau, like the judge, has suggested Ivi is unlikely
to successfully make that case.

Ivi vowed to appeal. “This fight is for the people and
their right to choice and control over their own entertainment
— and it will continue,” Ivi founder Todd
Weaver said last week. “The oppressive big media networks
must open their doors to innovators or they will
inevitably fall.” Stay tuned.

September