ivi TV pre-emtively sues big media regarding C&Ds, I predict a loss.
Today it was reported that ivi TV is sueing “Major Media,” claiming that they're not violating copyright: ivi TV sues Big Media, saying "secondary transmission of an over-the-air primary transmission is not an infringement of copyrights in the works contained in the primary transmission." I'm sure Major League Baseball disagrees with this.
For those who aren't aware, ivi TV was offering people access to a great number of television channels (most over-the-air TV), over the Internet for $5 a month. ivi TV's claim was that most of this available over the air for free anyway, so rebroadcasting it, complete and unedited, over the Internet does not violate copyright.
However, I don't think this is protected, at least not in its current implementation. Take Major Leage Baseball (one of the parties sueing ivi): they have struck contracts with local broadcasters nationwide. This includes blackouts and which games can be aired by region. By allowing me to stream TV from New York City I can bypass MLB's restrictions and not have to pay them for their MLB At Bat service.
Furthermore, ivi TV is profiting from broadcasters without any kind of agreement. According to a press release, ivi says "Furthermore, we pay broadcasters in accordance with the law, just like cable. This is not about copyright, this is about competition." There is little information about who they are partnered with.
If it is illegal for me to borrow a friend's VHS recording of a television show, I don't think this is legal. For a precedent, see the outcome of Sony Corp. of America v. Universal Studios (Wikipedia link, for those who don't speak Lawyer), were it was determined that an individual's recording for time/placeshifting was legal, and implies that if the recording is then shared, it is then unlawful redistribution of copyrighted content. In this case, ivi is recording the show, and then distributing it to other people. Granted, they're not allowing me to save the recordings, or view recordings from the past (though their DVR service allows me to do so, but only to an extent), this isn't a service that necessarily was established as a partnership with other organizations.
Now, I'm sure local TV stations would love to get their media out there and to as many viewers as possible. It's in their best interest to increase their reach, but I don't think they can, because of legal agreements with other parties regarding their media. I don't know if KSTW in Seattle has the legal right to allow transmission of their network programming or syndicated programming over the Internet, whether it's done in a cable-like fashion or not. As far as "this is what happens in cable," cable/satellite rebroadcasting is still geographically locked, and therefore doesn't breach any kind of geographical restrictions that may be placed on programming (such as syndication deals or professional sports, which has a huge vested interest in geographic lock-downs).
Therefore the big players here are the Networks and Professional Sports organizations, who have deep pockets and are well known for establishing blackout rules regarding programming. Networks want to be able to sell programming to their local affiliates, and being able to import stations from out-of-market threatens the existing affiliate system. Professional Sports imposes blackouts in order to encourage people to pay for tickets to see the games live, for their online services (Like MLB At Bat), or for extended cable packages (Like NFL Red Zone). This threatens to circumvent those systems, and offer people an alternative to those services.
Slingbox was almost sued into oblivion because it allowed placeshifting, but it still only allowed a person to (theoretically) view the shows they watched at "home," in much the same way I could record, say, All My Children on VHS, and then watch that on a tape deck in my office: it still doesn't allow me to import material from other regions.
I do not predict a favorable outcome for ivi TV, but if they're goin to fight them, more power to 'em. I would love to see an independent IPTV service rival cable companies, but knowing how much old media loves to preserve the status quo, I'm not feeling too confident this will come out in their favor.
Update: I incorrectly identified ivi TV as countersueing. It is sueing, but it has not been sued. It has only received Cease-and-Decisit letters. I also more thoroughly explained my reasoning, and linked out to additional articles.
Update 2: I have crossposted this to my reorganized blog here. I request any comments made from this point forward be made there. Thank you, and I apologize for any inconvenience.
