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ivi v. Broadcasters & Content Owners-Old Arguments Born Again

By Stephanie Robinson

New media technologies always will create unforeseen challenges for copyright law. For example, in the 1950s and 60s cable television providers battled broadcasters over the cable operators? right to re-transmit broadcast television signals to cable subscribers. After numerous courtroom scrapes, Congress stepped in with Section 111 of the Copyright Act, which established a statutory fee to be paid by cable broadcasters in return for the right to re-broadcast television signals. Recently, a new technology has emerged, uncovering the old broadcast-rights wounds that were long since considered fully-healed. ivi, Inc., an online television service has begun re-transmitting broadcast television to its own subscriber base. And ivi?s argument is no different than the cable operators of the mid-century. ivi?s service essentially takes a broadcast feed, called a ?primary transmission,? and rebroadcasts it as a ?secondary transmission? over the Internet to users who have installed the ivi software. This allows users to watch essentially real-time broadcast television from across the country. Broadcasters are not pleased and anyone familiar with sporting event blackout rules instantly will recognize why content owners consider this to be a significant problem. In fact, after only a week or so into the launch, ivi was served with cease and desist letters from the likes of NBC, CBS, MLB, and others. ivi's lawyers, certainly expecting this uproar from content owners and broadcasters, filed a request for declaratory judgment on September 20th, claiming that the Copyright Act, and specifically Section 111, expressly authorizes just this kind of retransmission. According to the congressional notes accompanying the adoption of Section 111 of the Copyright Act, the section was a concession to the cable companies from the broadcasters, allowing cable television providers to transmit broadcast signals to their subscriber base so long as they paid a statutory licensing fee to the Copyright Office. That fee is then in turn redistributed to the broadcasters. ivi argues that their service is functionally no different than a cable provider?s and therefore should be allowed to utilize the same statutory compulsory license tool to continue to re-broadcast the primary transmission from broadcast stations. Whether the federal court legitimizes ivi?s business model remains to be seen, but ivi?s argument certainly is clever and likely will make for interesting discourse on this new intersection of copyright law and technology.

Full post as published by Business and Technology Law on November 11, 2010 (boomark / email).