Image from http://www.ivi.tv/ 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 http://www.ivi.tv/ above, ivi.tv 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
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