A Seattle district court has rejected ivi TV's request for a declaratory ruling that its service does not violate broadcasters' copyright protections, saying ivi was essentially forum shopping.
NBC and others had petitioned a 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 Seattle court for the declratory ruling before the
broadcasters filed their suit, but 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 (the New
York suit) has been filed. Usually the first suit takes precedence, but,
according to a copy of the order obtained by B&C, Seattle Judge
James Robart 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," wrote Robart, calling ivi's suggestion it
would negotiate 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 says 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 retransmssion. Ivi is now streaming stations in New York, L.A., Seattle, and Philadelphia.
