Monday, March 14, 2011

Preliminary Injunction Granted in SDNY - Internet Retransmissions of Television Broadcasts Infringing

Image from viewed 3/13/2010

In WPIX, Inc. v. ivi, Inc. 10 Civ. 715(SDNY Feb 22, 2010), Judge Naomi Reice Buchwald granted a preliminary injunction under the Second Circuit's standard set forth in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). I analyzed the Salinger case here.   It's always fun to see whether a preliminary injunction has affected a litigant's operations, but as you can see from the image from above, is still going great guns.

ivi TV is a web-based service that took television broadcasts from around the country and let you watch them on your computer.   Sounds great, but ivi claimed that it was entitled to do so under 17 USC 111 which is a provision giving "cable systems" the right to retransmit broadcasts under compulsory licenses.  Judge Buchwald noted that such a license would cost about $100 per year.

The opinion is long and sets out the history of compulsory licensing of cable retransmissions, if you care for that type of thing.   Noteworthy for plaintiffs is that Judge Buchwald notes at one point that a plaintiff's inability to show irreparable harm is indeed proof of irreparable harm.

It appears obvious to us that defendants have unwittingly demonstrated why the harm they present to plaintiffs is irreparable. There can be no dispute that by taking away viewers from sanctioned entities which compensate or otherwise obtain permission from plaintiffs for the use of their works, defendants are intruding on plaintiffs’ copyrights and taking away business opportunities. This being the case, one might wonder why it is that plaintiffs have not “submitted” specifically identifiable, enumerated, and quantified harms, as defendants seem to believe is necessary. The logical conclusion is that plaintiffs have not made such “submissions” because they cannot specifically demonstrate or quantify the harm that ivi has caused. There is no way to know how many people have used ivi rather than sanctioned methods to watch plaintiffs’ programming, or how many people have used ivi to watch programming that should not have been available in their geographic area. Furthermore, even if we could determine these numbers, we would still not be able to ascertain the precise financial impact on the plaintiffs.

Defendants contend that because plaintiffs cannot specify the harm, it must be speculative. In contrast, we find that it is because the harms are unquantifiable, and [sic] thus irreparable.

For procedure wonks, you will note that the decision involves a first-filed action in Washington State.   The action before Judge Buchwald was a second-filed action in New York.    Judge Buchwald correctly deferred to the first-filed judge to determine whether or not the case was an "improper anticipatory filing" which is not entitled to the traditional first-to-file rule.

I cover the first-filed suit rule (which is not so simple), otherwise known as the prior action pending doctrine in the Copyright Litigation Handbook, Chapter 6:  Cease and Desist Letters and Declaratory Judgment Actions.

Link to Judge Buchwald's decision below.

Wpix v Ivi Tv Inc. Sdny Feb 22 2011
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

1 comment:

Anonymous said...

What a farse.

When I think of judge Buchwald the words luddite and dinosaur come to mind.

She is rather well known as being very bias and bending facts to support her opinion,

There are major portions of her argument against Ivi I find just very funny.

I quote the judges rather sarcastic remark that
" such a license would cost about $100 per year."

She of course leaves out the fact that the actual fee is based on a number of factors, not the least being number of subscribers and geographic location.
But of course she was trying for a shock affect and such facts would just get in the way.

She talks about ivi not abiding by the communication act when the FCC has stated they would not take jurisdiction over the matter. IVI is not bound by the communications act.

She demonstrates total technical illiteracy when she tries to describe how the fcc and broadcasters agree that online video distribution can't be controlled or secured.

She fails to understand the difference between a secure point to point distribution vs more common internet streaming techniques which is pretty clear what was being referred to by the fcc concern. Further she talks about ownership of wires, as if that was in the communications act Or was even relevant as "ownership of the wires" includes other distribution such as multicasting and tcp .

In fast what happens when these smalll cable companies adopt virtual cable devices verses dedicated hardware.