Ivi TV finds it has friends in public places; hopefully those friends have friends in court, too

Jim O'Neil

Last week, I was getting ready to write about ivi TV, the startup Internet-based cable company that launched last September, streaming live some three dozen broadcast channels from New York, Seattle and overseas. A federal judge in Seattle had just denied ivi's appeal for a declaratory judgment that would have kept the case on the West Coast, which, perhaps, was perceived as a friendlier place for the case to be heard than New York, the hometown of Big Broadcasting, which is where it has landed. The Seattle-based company is being sued by 25 broadcasters who are seeking an injunction that would stop ivi TV from retransmitting their over-the-air content.

Earlier that day, I'd written a story about the company for FierceIPTV that said the ruling might be its death knell, that Big Broadcasters were likely headed for a walkover victory.

I was looking for a follow-up for Wednesday's FierceOnlineVideo. I received an email from ivi, telling me they were looking forward to going to New York for the case to be heard; that they believed the judge--the same one who'd ruled against rival FilmOn.com--was the right jurist to hear its case. And that's the story I wrote, convinced that ivi was treading on thin ice and that the sheer, ponderous weight wielded by Big Broadcasting would send it crashing through.

I'm still not sure that won't happen, but I'm no longer convinced it's a done deal.

Tuesday, four public interest groups jointly filed an amicus brief, a document filed in court by someone not directly tied to the case but who is an interested party.

The groups, Public Knowledge, the Media Access Project, the Electronic Frontier Foundation and the Open Technology Initiative of the New America Foundation passionately sided with ivi TV, opposing a temporary restraining order.

In the brief, the group argued "ivi is just as likely to help [The Networks'] as do them harm. [The Networks'] reach each ivi viewer at zero additional marginal cost. To the extent ivi expands the number of individuals viewing a broadcast, it may make that broadcast more, not less, attractive to advertisers. ivi expands the reach of broadcasters at no cost.

It also said "Like ivi, both traditional cable operators and satellite television companies have been accused of being lawbreakers. But for decades, both Congress and the FCC have enabled the emergence of new video distributors. The public interest is served by this competition, and it should continue."

But the most poignant argument stated was this one:

"America's legal system favors competition, not monopoly, and the law does not grant special privileges to 1970s-era cable operators while discriminating against new entrants that offer a substantially similar service. ivi deserves to make its case, and the preliminary injunction should not be granted. Such an order would create a chilling effect that would slow the growth of Internet-based video distribution generally, and would be contrary to the public interest."

That's a sentiment that the online video industry should take to heart. Because, not only would a ruling against ivi be contrary to the public interest, it would be contrary to the interests of this industry as a whole.

Consider this: at one point in time, the cable industry was looked at as a bunch of cowboys by Big Broadcasting. I can remember signs in my Long Island hometown that screamed "Stop Pay TV!" Back then, I didn't even know what pay TV was. Satellite, then AT&T's U-verse faced similar campaigns. And now, ivi TV. If every time a new delivery platform using new technology debuts it has to face a mountain of legal bills to gain the right to offer the public a choice, well, as an industry, we're in trouble.

According to Section 111 of U.S. copyright law, the definition of a cable system is pretty straight forward, albeit pretty vague: A facility that "receives signals transmitted or programs broadcast by one or more television stations... and makes secondary transmissions of such signals or programs by wires, cables, microwaves, or other communications channels to subscribing members of the public who pay for such service."

Is there a doubt ivi TV is a cable service? Tuesday's amicus brief is an indication that there's a bit of a groundswell working for ivi TV. Hopefully, the court recognizes that this is one bit of innovation that should be allowed to move forward.- Jim