The War Against ivi is a Sign of Things to Come

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There’s a perpetual war against new entrants in the communications industry. Right now, there’s a skirmish over ivi, a startup Internet video service that’s daring to claim some of the same statutory rights as old-school cable systems. ivi offers a new kind of service that is, at the same time, quite old. Like cable systems have been doing since the 1940s, ivi retransmits broadcast stations to subscribers who might not be able to tune in any other way. But ivi sends the signals over the Internet. It’s not a service like Hulu or Netflix that offers disaggregated program content, stripped of commercials or with new ones. And it’s not like Youtube or Vimeo—ivi is only viewable by paying subscribers. ivi simply increases the number of potential viewers for a station by boosting its signal, unchanged, over the Internet.

Nonetheless, a coalition of broadcasters are trying to shut ivi down, arguing that the law freezes in place the cable technology of the 1970s. They’re calling ivi “pirates,” which in fact puts them in distinguished company. Today’s giant cable companies are the descendants of companies that were themselves called pirates. One case went to the Supreme Court, which ruled that cable companies no more infringed copyright than a rooftop antenna or any other signal booster did. The losers in that case prevailed on Congress to change the law, which it did in 1976—but at the same time it created a system whereby certain systems qualify for a license for programming. ivi claims it counts as the kind of system that should get this license; the broadcasters disagree.

The details of the case are arcane, and involve FCC decisions and “retransmission consent” rules in addition to copyright. But this very complexity is exactly why ivi should get its day in court. Today, the Southern District Court of New York is holding a hearing on whether ivi should be shut down before a trial even begins. It would be bad if the judge rules that the law blesses only certain ways of running a cable system and not others, but it would be even worse if she effectively decides the issue without a full hearing on the merits.

That’s why Public Knowledge, joined by the Electronic Frontier Foundation, Media Access Project, and the Open Technology Initiative of the New America Foundation filed a memo with the court on Monday, asking it to not shut ivi down before it can fully make its case. You can read the brief here.

Whatever the outcome of this case, eventually all the relevant policymakers—Congress, the FCC, the Copyright Office—are going to have to come to grips with the fact that the Internet is the future of video distribution. This small skirmish is just a sign of things to come.

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