ArtsWatch: Ivi's TV Streams Get Clipped

Judge not persuaded by Internet TV service's claim it is a "cable system"
February 28, 2011 -- 7:46 am PST
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On Feb. 22 U.S. District Court Judge Naomi Reice Buchwald for the Southern District of New York granted broadcasters a preliminary injunction against ivi TV's Internet streaming video service. Ivi had been retransmitting program streams to subscribers, arguing this was not copyright infringement because its service met the statutory definition of a "cable system." The judge found it "extraordinarily unlikely" that ivi's argument would stand up in trial. The National Association of Broadcasters said it was "gratified." Consumer advocates Public Knowledge expressed disappointment in the ruling and said, "If competition to traditional cable service is to develop in the online distribution sector, then the Federal Communications Commission and Copyright Office are going to have to move quickly to update their rules to conform to the realities of new technology and consumer choice." Ivi plans to appeal the ruling. "This fight is for the people and their right to choice and control over their own entertainment — and it will continue," said ivi founder/CEO Todd Weaver. "The oppressive big media networks must open their doors to innovators or they will inevitably fall."

The Motion Picture Association of America announced on Feb. 8 that it sued Internet service Hotfile for copyright infringement in the U.S. District Court in the Southern District of Florida. Based in Panama City, Hotfile claims to be a file-hosting cyberlocker service that offers takedown procedures for content owners notifying it of infringement. However, Hotfile also charges frequent downloaders for faster service while providing financial incentives for uploaders of heavily used content, making Hotfile an illegitimate download hub and not a legitimate cyberlocker, according to the MPAA. MPAA General Counsel & Chief Content Protection Officer Daniel Mandil said, "In less than two years Hotfile has become one of the 100 most trafficked sites in the world. That is a direct result of the massive digital theft that Hotfile promotes."

Dunlap, Grubb & Weaver — the law firm behind U.S. Copyright Group and — has been making headlines since last April with its efforts to profitably represent independent filmmakers in lawsuits against individual file-sharers. According to Cnet News, DGW's recently established national network of regional law firms has begun filing infringement lawsuits against named individuals in multiple states. Electronic Frontier Foundation has been vigorously opposing the firm's efforts and forcing its legal strategy to evolve. DGW's business strategy seeks to collect prompt settlements from large numbers of Internet users who were detected downloading films made by DGW's indie clients. How and where the lawsuits are filed could be secondary to their usefulness as leverage, encouraging unauthorized downloaders to settle.

The Federal Communications Commission's open Internet and Net neutrality rules became a target for Republicans in Congress early last month when Rep. Marsha Blackburn (R-Tenn.) introduced H.R. 96, the Internet Freedom Act. Recent developments include:

  • On Feb. 15 the House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet held a hearing titled "Ensuring Competition On The Internet: Net Neutrality And Antitrust," including testimony from author Larry Downes, who later summarized many of these developments for Cnet News.
  • On Feb. 16 the House Commerce Committee's Subcommittee on Communications and Technology — chaired by Rep. Greg Walden (R-Ore.) — held a hearing titled "Network Neutrality And Internet Regulation: Warranted Or More Economic Harm Than Good?" with testimony from all five FCC commissioners. Afterward, Rep. Fred Upton (R-Mich.) said, "We held a hearing today in which we gave the commissioners of the FCC one more opportunity to provide sufficient evidence of a crisis that warrants government intervention. They failed." Walden then introduced joint resolution H.J. Res. 37 in the House, disapproving and nullifying the FCC's rules, and Sen. Kay Bailey Hutchison (R-Texas) introduced its companion S.J. Res 6 in the Senate.
  • On Feb. 17 Walden introduced H.Amdt. 80, amending the budget bill H.R. 1 to prohibit the use of any funds to implement the open Internet rules. The amendment passed 244 to 181. "I am pleased that my colleagues in the House accepted my amendment to ensure the FCC does not have the funds to implement the controversial Internet regulations," Walden said.
  • On Feb. 23 Sen. John Kerry (D-Mass.), joined by several Democratic colleagues, sent a letter of complaint to the Senate Majority and Minority Leaders objecting to Republican actions in opposition to the FCC's rules.

The House Judiciary Committee's Subcommittee on Intellectual Property, Competition and the Internet has a hearing scheduled for March 1 with Intellectual Property Enforcement Coordinator Victoria A. Espinel. Last week's column described her first-year report and new advisory committees.

April 13 is the extended filing deadline for reply comments to the Copyright Office's inquiry into whether pre-1972 recordings should be covered by federal copyright law. Initial comments have been published online including the opposition of American Association of Independent Music and the RIAA, who said, "...moving pre-1972 sound recordings under federal law would do great harm to existing rightsholders and would result in so many legal uncertainties and innumerable costs and disputes that it would be less, not more, likely to result in better access of certain older recordings."


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