ivi, Inc.’s new service, offering live television broadcasts on computers and mobile devices may soon be a thing of the past. A long list of broadcasting companies, including, inter alia, Disney Enterprises, Inc., Fox, NBC, CBS, and ABC, have sent ivi, Inc. cease-and-desist letters in response to the company’s rebroadcast of their television channels. In response, ivi, Inc., an internet television provider, asked the U.S. District Court for the Western District of Washington to declare that ivi’s broadcasts are considered “secondary transmissions” instead of copyright infringement.

For a small monthly fee, ivi, Inc. allows subscribers to stream live television channels to their computers. ivi captures live television signals and encodes them, then sends them out to their registered customers’ computers. To use ivi, Inc., a subscriber simply goes to ivi’s website and downloads the ivi TV player onto their computer. Then, by clicking on the icon that appears on the desktop, ivi TV opens and live television streams through the computer. Viewers can change channels, adjust the volume, see their signal strength, and do everything else on their computer that they can do on their televisions. The service is different from Hulu or YouTube in that the programs shown on ivi are not archived, but live and being shown on their respective broadcast stations at the same time that they are streaming through ivi TV.

ivi, Inc. argues that its service is similar to that of a cable or satellite broadcaster and that its broadcasts are protected by the Copyright Act as “secondary transmissions.” According to ivi’s complaint, filed September 20, 2010, its service is legal and all ivi, Inc. is required to do under Section 111 of the Copyright Act is to pay a periodic statutory licensing fee to the Register of Copyrights to stream the broadcasts. The company argues that the “original over-the-air broadcasts are called ‘primary transmissions’ . . . [and] the subsequent distribution of the primary transmission is called a ‘secondary transmission.’” It goes on to state that the “Copyright Act expressly authorizes secondary transmissions of copyrighted works embodied in primary transmissions . . . where the secondary transmission is subject to a statutory license.”

The broadcasting companies, on the other hand, argue that there is nothing in the Copyright Act that provides ivi, Inc. with a compulsory license to retransmit live television programming. The companies consider ivi, Inc.’s practices theft. They all intend to defend their copyrights and are opposing the declaratory judgment.

The outcome of this case could potentially have a large impact on television broadcasters and the television industry as a whole. For example, the availability of live television over the internet could make the use of televisions obsolete and increase consumer reliance on computers and mobile devices. It could also lead to new methods of recording and broadcasting television programs.

Arent Fox is monitoring this case. For more information on this case or any other cases involving copyright infringement, please contact Anthony V. Lupo or Sarah Bruno.