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Is IVI.TV Legal?

Posted by Alan at 4:05 PM on September 24, 2010

Recently, on the Geek News central Podcast, #610, Todd introduced us to ivi.tv, and also asked if it was legal.  I was intrigued by the prospect, being someone who dumps his DirecTV subscription between football seasons.  So, I decided to take a longer look at both it’s capability and it’s legality, and here is what I have found.

The simplest answer is that we don’t know.  Apparently it’s going to be up to a court to decide.

But, before I get into all of that, let me explain exactly what IVI is doing.

It’s compatible with all three major platforms – Windows, Mac, and Linux.  They have keyboard controls and hotkey options, and there’s a free 30 day trial.  After the trial it’s $4.99 per month and an additional $0.99 for DVR capability.

Their broadcasts are, currently, limited.  They are mirroring certain channels in 2 markets – New York City and Seattle.  Their website states that they plan to enter other markets, but there’s no mention of which ones they are looking at.  The channels are, mostly standard broadcast at this point  – CBS, NBC, Fox, and ABC; along with cable networks such as The CW, Universal Sports, and Univision.

When I say they are mirroring, I mean they are literally rebroadcasting these channels 24-7.  There is a guide on their website that you can page through to see what is on all of the available channels.

That’s the basics of how it works.  Now let’s get to the important part – the legality issues.

In a nutshell, IVI.TV says they are legal (per the CEO) and the broadcast community says they are not.  That sounds simple, since in the past, these types of disputes have been overwhelmingly in favor of the content producers.  But, in this case, it’s the copyright act itself that may be in dispute.

The monthly fee, which IVI charges, goes towards paying the networks.  And, here’s what the IVI CEO had to say:

“The Copyright Act expressly authorizes secondary transmissions of works embodied in primary transmissions.  For example, the Copyright Act expressly the secondary transmission of an original television broadcast where the secondary is subject to a statutory license. Under Section 111 of the Copyright Act, statutory licensing fees are paid periodically to the Register of Copyrights in accordance with an established scale and schedule. Section 111 further provides that the secondary transmission of an over-the-air primary transmission is not an infringement of copyrights in the works contained in the primary transmission.”

The NAB disagrees, and has filed suit No one has sued ivi. IVI are suing the broadcasters preemptively.  For now, IVI will continue to broadcast and wait for the matter to be sorted out by the courts.  I have my doubts about it’s legality, but if they pay the broadcasters/networks then it may be an interesting battle.  After all, they are selling their shows through such places as iTunes and Amazon, as well as offering them for free streaming on their own websites and such places as Hulu.  The money may talk.  I guess we’ll see, but it could take quite a while.

UPDATE: I received this email after this article posted.

The National Association of Broadcasters (NAB) attacked ivi TV today in response to its Complaint for Declaratory Judgment of Copyright Noninfringement filed yesterday in Federal Court. Unfortunately, they had no relevant legal claims to make other than to attempt to smear ivi TV’s innovative approach, which aims to help content owners recognize new revenue streams and increase broadcast viewership. This is clearly a David v. Goliath attempt to crush technology and consumers’ choice.

Please contact me via reply email if you wish to set up an interview with the CEO. Thank you!

Best, Hal

*FOR IMMEDIATE RELEASE*

*_ivi TV Statement In Response to NAB_*

Seattle (September 21, 2010) — ivi TV issed a statement of facts today in response to NAB’s earlier statements regarding ivi TV’s recent Complaint filed in Federal Court.

Commenting on the development, ivi TV CEO Todd Weaver said:

“We understand the NAB’s point of view and welcome this opportunity to enlighten them.  ivi TV (ivi, Inc.,) filed a lawsuit, because we were wrongly accused of copyright infringement, an accusation disruptive to our business. We needed resolution of these issues right away. We believe the copyright claims are unsubstantiated and are really just camouflage for trying to stifle innovation and competition. Furthermore, we pay broadcasters in accordance with the law, just like cable.

This is not about copyright, this is about competition.  Congress created the compulsory licensing scheme for cable systems, to distribute broadcast content to the masses. We intend to increase viewer numbers and would welcome opportunities to work with the Broadcasters.

Broadcasters fought against cable companies, then joined them. Broadcasters then fought against satellite companies, then joined them. Now it is our turn. History has a habit of repeating itself — and it is unfortunate they cannot learn from that and realize we strongly support broadcasters and their program suppliers helping them monetize, increase their eyeballs, and ultimately get paid.

The iCraveTV litigation referenced by the NAB is hardly precedential, as no decision on the merits was ever reached.  Further, it involved different circumstances, including augmenting broadcast content with advertisements.  ivi TV, on the other hand, is making the primary content available as is without any modification.”

Link to previous press release announcing the Complaint and copies of the Complaint together with supporting documents may be found here: http://www.prweb.com/releases/2010/09/prweb4542434.htm

*About ivi*

ivi TV™ endeavors to make the world a better place by providing a high-quality viewing experience while offering consumers what they want in the way they want it, with more choices, less hardware, and higher standards than other modes of online content delivery. At the same time, ivi TV increases eyeballs for channels and advertisers, continuing and adding to the live television tradition in an innovative and sustainable manner. Consumers, broadcasters and advertisers alike will agree that live television, most notably sports and news programming, is here to stay. The solution is ivi TV. And the time is now. ivi, Inc., is based in Seattle. For more information, please visit http://www.ivi.tv <http://www.ivi.tv/>.

5 Comments

  1. From Joe at 5:55 am on September 25, 2010

    The cable and satellite companies pay all of the networks a few pennies per subscriber for the privilege (if not the right) to retransmit the signals. I can see how the networks would be upset if they weren’t getting their cut from IVI. This one will be interesting to watch.

  2. From Armchair Lawyer at 7:40 am on September 25, 2010

    I’m following this case intently, so I figured I should call your attention to one small factual error.

    The NAB has not sued ivi TV. They have just sent a threatening letter and have undertaken a public relations smear campaign. But they have not filed suit.

    Otherwise this is a very fair article.

    ivi TV isn’t doing anything that cable and satellite carriers don’t already do. Cable companies can (and do!) retransmit broadcast TV channels without express permission under the same Section 111 of the Copyright Act that ivi TV cites.

    Satellites are similarly covered for their transmissions without express permission of copyright holders under Section 119 of the Copyright Act.

    I don’t hear anyone claiming that cable and satellite companies are infringing copyright.

  3. From GF at 9:51 am on September 25, 2010

    The NAB has NOT filed suit against ivi; in fact, not one broadcaster, nor the NAB, has filed suit against ivi. Ivi, in fact, filed suit against the broadcasters in response to their
    Case no. 2:10-CV-01512. This case is available on ivi’s PR website for verification. Filed in Seattle, Washington, it is a Decloratory Judgment of Copyright Noninfringment. Please check toothache and correct this article.

  4. From GF at 9:58 am on September 25, 2010

    The Huffington Post has corrected the misinformation in their article. http://www.huffingtonpost.com/dave-taylor/is-ivi-tv-really-the-futu_b_735678.html
    Again, nobody has brought suit against ivi–yet. THEY brought suit against NBC, ABC, CBS, the AFL, Fox, Disney, and others, as a preemptive attempt to avoid future litigation.
    And “toothache”? Autofill is a crazy beast…

  5. From IVI.TV Update Has Been Posted - Geek News Central at 2:51 pm on September 25, 2010

    [...] added an update to my recent article about IVI.TV.  If you are interested then please check it out here.  There is further information which has been received from the company and some what I wrote [...]