A federal judge in New York has ordered ivi Inc. to stop streaming copyright TV programming on the Internet. The preliminary injunction was granted in a lawsuit against ivi brought by multiple TV station owners and networks.
“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. 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,” said NAB Executive VP of communications Dennis Wharton. The National Association of Broadcasters had backed the stations and networks in their efforts to shut down both ivi and FilmOn, which was previously ordered to stop streaming broadcast signals without permission.
ivi began operations last September and immediately sued broadcasters in a Seattle federal court, seeking a declaration that ivi’s online streaming service qualified as a cable TV operation and that it was entitled to a statutory license to retransmit broadcast signals to its subscribers and pay the specified fees into a pool to be dispersed to the broadcasters. It had also argued, though, that it was not subject to FCC regulation as a cable operator.
The broadcasters responded with their own federal lawsuit in New York and argued that the pre-emptive filing by ivi was improper because it had already been served with cease and desist letters from the copyright holders. Now that the jurisdictional dispute has been ironed out, the New York federal court has ordered ivi to stop streaming until the case is decided.
In issuing her preliminary injunction, US District Judge Naomi Reice Buchwald agreed with previous findings by the US Copyright Office that Internet-based operations are not entitled to the compulsory cable license and that video distributors such as satellite operators are not entitled to nationwide retransmission rights.
“Allowing ivi to continue its retransmissions would stretch the compulsory license far beyond the boundaries that the enacting or any later Congress could have ever imagined,” the judge wrote.
She also rejected the idea that ivi is currently too small to cause any real harm to the broadcasters and should be allowed to operate until it gets its day in court. “While it is a practical hardship for ivi to go out of business, it is not a legally recognized harm. It is axiomatic that an infringer of copyright cannot complain about the loss of ability to offer its infringing product,” Judge Buchwald wrote.
In granting the preliminary injunction, the judge said it was “extraordinarily unlikely” that ivi would prevail on its claim that it is a cable system as far as the statutory license is concerned.
In a note on its website, ivi noted that the court had ordered it to stop its streaming. “We will be appealing the decision in the second circuit but in the interim we must shut-down most of our broadcast channel offerings. We believe the court made an error in the ruling and will be appealing the decision supported by many public interest groups,” the company said.
ivi CEO Todd Weaver sent this statement to RBR-TVBR:
“This fight is for the people and their right to choice and control over their own entertainment – and it will continue. The oppressive big media networks must open their doors to innovators or they will inevitably fall. People want responsible choice, not the one-size-fits-all television offerings imposed by powerful media interests.
Specifically, regarding today’s development, Judge Buchwald’s opinion is premised on her statement that ivi is ‘not complying with the rules and regulations of the FCC’. This conclusion is simply false, as ivi has met with the all the commissioner’s offices of the FCC repeatedly and has received assurances that we are in full and complete compliance. Judge Buchwald makes the legal mistake of misinterpreting the copyright law to instead make communications policy. 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 will appeal to the Second Circuit Court of Appeals, will explore Congressional and Administrative solutions, and will continue to advance the public’s interest in a balanced reading of the Copyright Law.
During the pendency of the appeal, ivi will continue to operate, will fight to ‘win the future’, and will fight to provide consumers with meaningful choice at a reasonable price.”
RBR-TVBR observation: It was pretty easy to see this coming, but ivi’s lawyers did manage to drag it out for a few months.
