Ivi TV Sees Promise in Copyright Act Section 111 in the Courts
Ivi TV, selling a $5 monthly subscription for online access to a handful of TV stations, sought a declaratory ruling against TV program suppliers in federal court because other options weren’t available to it, said its counsel. “Our investigation demonstrated to us that this wasn’t the FCC’s province at all,” said Lawrence Graham of Black Lowe & Graham. He pointed to a recent Media Bureau decision in the Sky Angel program access complaint (CD April 23 p9) and other public statements that the agency doesn’t regulate Internet content. “A number of things told us the FCC doesn’t have anything to do with video content over the Internet,” Graham said.
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Ivi has the right under Section 111 of the Copyright Act to carry TV stations through a statutory license as long as it pays royalties, it said in a complaint in a federal court in Seattle, where the company is headquartered. Some case law from the early days of the satellite-TV industry supports the claim, Graham said. The broad definition of a cable system in the Copyright Act works in Ivi’s favor, too, he said. “Our view is fairly plain. The language is very broad,” he said. “It defines the secondary transmission as one that’s going over cables, wires or other transmission means.” The complaint names Fisher Communications, NBC, CBS, ABC, the CW, Fox, Major League Baseball and others (CD Sept 22 p10) and has so far elicited few responses from the defendants, Graham said. The NAB has said it is “blatantly illegal” to steal broadcasters’ signals.
In similar efforts, iCraveTV failed in 2000 and Virtual Digital Cable made similar arguments before the FCC in 2007. The iCrave case involved very different circumstances and was “hardly precedential,” Ivi said in a statement e-mailed to reporters last week.
"The issue here is whether or not a court will find Internet distribution of broadcast signals fits within the definition of a cable system under the Copyright Act,” said lawyer Marty Stern of K&L Gates, which has telecom and media clients. “The Copyright Office does not believe that Internet distribution would fit in.” In a 2008 report to Congress, the Register of Copyrights recommended against such a broad reading of Section 111. “The Office is not against new distribution models that use Internet protocol to deliver programming, but only opposes the circumstance where any online content aggregator would have the ability to use a statutory license to sidestep private agreements” and FCC rules, the report said.
Meanwhile, Ivi will continue building its business, CEO Doug Weaver said. It carries TV stations from New York City and Seattle and plans to add markets to its lineup soon, beginning with Los Angeles and Chicago, he said. Ivi also is in discussions with pay-TV programmers and event producers to license their content and offer pay-per-view events, Weaver said. Ivi is working on extending its software, available as a PC download for PC, Linux and Mac operating systems, to mobile devices, he said.
The software works by combining elements of peer-to-peer file sharing with a proprietary conditional access software, Weaver said. The system supports only standard-definition video, but HD support may come later as more consumers buy high-bandwidth broadband access, he said. “It’s something that we'll add later on and deliver to the smaller number of people” who have broadband access that’s fast enough to handle continuous HD streaming, Weaver said. Ivi’s iPad application should be available in the Apple App Store by mid-October, he said. An iPhone app should follow about three months later, he said: “And then we'll just move down the list of popularity” of devices.