[A2k] Also on IVI TV

John Bergmayer john at publicknowledge.org
Wed Aug 29 11:40:27 PDT 2012

PK has been talking to various people who are interested in reforming the media/retrans/compulsory license system about the danger the BT could pose to their efforts. For example,  a lot of free-market type in Congress want to get rid of both the compulsory license and retransmission consent, which would go against most forms of the treaty I've seen (consent of the copyright holder, not the broadcaster qua broadcaster, would be necessary to retransmit a signal on cable).  

As far as the ivi decision goes, it has some unfortunate dicta, but it was an "abuse of discretion" case so the outcome is not surprising. Its precedential value is fairly limited, and its analysis is so cursory (especially on the final three prongs of the test for a PI) that I think it will be of limited impact.

I'd point out that the Copyright Office reports cited for the narrow interpretation of Section 111 generally have an outdated and not-very-accurate idea of how the internet works.  The Office seems to think that putting something online in any form is equivalent to making it available for free worldwide--however, online systems such as ivi and Aereo are very secure, end-to-end encrypted, and can use geoblocking techniques.  A similar misunderstanding of internet video distribution can be seen in the side letter to the Colombia US FTA.  

On Aug 28, 2012, at 6:47 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:

> Seems relevant to the xcasting treaty in relation to 1) how this
> precedent might translate from the national to the international
> domain; and 2) less so the bold reinterpretation of "cable system" IVI
> tried, but the general conception of over-the-air broadcasts under the
> Communications Act.
> Seems to warrant considering the raising of these points within the US
> legislature, before the xcasting treaty sets other premises.
>> http://www.commlawblog.com/2012/08/articles/broadcast/ivi-tv-loses-round-two/index.html
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John Bergmayer
Senior Staff Attorney
Public Knowledge
(202) 861-0020

PK's 9th Annual IP3 Awards,
Thursday, September 13th.

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