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Judge Rules Against Online 'Cable' Provider

February 22, 2011

Updated: 4:30 p.m.

A federal judge Tuesday issued a preliminary injunction against the online content provider ivi TV, barring it from offering television programming over the Internet without the permission of the broadcasters who own that content.

Several broadcasters including CBS, Fox and NBC sued ivi TV and its CEO Todd Weaver in September for copyright infringement.

Ivi has argued that it is a cable service and is not breaking the law because it is offering the programs under the compulsory license law, which allows cable systems to use programming as long as they make payments to the Copyright Office. Ivi offers access to network shows online for a monthly fee of $4.99.

New York federal district court Judge Naomi Buchwald, however, concluded in her decision granting broadcasters' request for an injunction to block from offering their programming online that the online firm does not meet the standard for a cable system under the compulsory license law.

The "plaintiffs have demonstrated the need for a preliminary injunction," Buchwald wrote. "As it is extraordinarily unlikely that ivi will ultimately be deemed a cable system under Section 111, plaintiffs have demonstrated a likelihood of success on the merits of their copyright claim."

In her ruling, Buchwald noted that ivi appears to be trying to have it both ways, arguing that it is a cable system "for purposes of the Copyright Act, and thus may take advantage of the compulsory license, but that it is not a cable system for purposes of the Communications Act, and thus it need not comply with the requirements of that Act and the rules of the [Federal Communications Commission] promulgated thereunder."

National Association of Broadcasters spokesman Dennis Wharton said in response to the ruling that, "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."

In a statement, Ivi TV' s Weaver said his firm would appeal the ruling and also "explore congressional and administrative solutions, and will continue to advance the public's interest in a balanced reading of the Copyright Law."

"This fight is for the people and their right to choice and control over their own entertainment -- and it will continue," Weaver added.

Some public interest groups, however, say firms like ivi TV provide a needed online alternative.

"We are disappointed that Judge Buchwald chose to shut down ivi at all, much less so early in the legal process," Public Knowledge staff attorney John Bergmayer said in a statement. "Her decision showed clearly the ambiguities in current law and regulation which online video providers like ivi face."

The group urged the FCC and the Copyright Office to "move quickly to update their rules" to address the growth of new online content distributors.

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