Judge Denies Ivi Injunction


A federal judge in Seattle has rejected Ivi TV's request for a declaratory ruling that its service does not violate broadcasters' copyright protections, saying in essence that ivi was forum shopping.

NBC and others had petitioned a federal court in New York court to enjoin ivi from streaming TV station signals online, saying it was copyright infringement.

Ivi, which claims it has a copyright right to the content, but does not fit the definition of a cable operator subject to retransmission consent, went to the U.S. District Court for the Western District of Washington, in Seattle, for the declaratory ruling before the broadcasters filed their suit. The Seattle court said it was the New York court's call to make.

The New York case, filed Sept. 28, has already been briefed.

The Seattle court granted the request by Fisher Communications (Ivi is streaming its KOMO Seattle without having paid retrans fees), NBC, and others to dismiss the ivi request.

A district court may dismiss a request for declaratory ruling or other action when a suit involving similar parties and issues has been filed.

Usually the earlier suit takes precedence. Judge James Robart, though, for the Seattle court said ivi had anticipated the broadcaster suit, and only suggested it would negotiate a resolution with them, then filed its suit preemptively without giving the broadcasters the chance to respond.

Robart pointed to ivi's own press release declaring the suit a "preemptive move" against "big media."

"While the court notes the importance of generally adhering to the first-to-file rule, in this case, it properly exercises its discretion to recognize an exception and to decline to hear ivi's case," Robart wrote, calling ivi's suggestion it would negotiation disingenuous. "The totality of the circumstances here leads the court to conclude that Ivi filed the action here because of imminent threat of suit by the defendants, and to secure its own forum."

Ivi is essentially arguing that its service is, and isn't a cable service. Ivi avers that it fits the definition of cable system when it comes to the statutory license to retransmit broadcast signals over the air per U.S. Copyright law, but that it is not a cable system when it comes to the Communications Act requirement to obtain express permission from a station before such retransmission.