HHR New Media, Entertainment and Technology Group

As we recently reported here, a  new Internet-connected software application, called “ivi tv”, was just released that allows pc, mac and linux end users to stream live feeds from over-the-air television stations to their computers anywhere in the world. Unlike other online content distributors, however, the start-up recently confirmed that it has elected not to negotiate with the copyright holders for the license of its programming, and has instead elected to wager its future on a seemingly liberal interpretation of certain provisions of the Copyright Act (the “Act”), which permit qualifying “cable systems” to rebroadcast over-the-air television signals upon the payment of certain statutorily mandated revenues (see Section 111).

As we suspected, the response from the entertainment community has been swift, and the company has since received a barrage of cease and desist letters from television networks, movie studios, sports leagues, broadcasters, syndicators and others in the entertainment industry alleging that the operation of the service as currently conducted amounts to copyright infringement. In response, the company has now filed a complaint for declaratory judgment in Seattle district court alleging that by complying with the Act’s compulsory licensing scheme in Section 111 “it has not infringed any of the copyrights owned by the any of the Defendants.”

We will obviously keep an eye on future developments as this complaint now moves its way through the court system and the entertainment industry’s forthcoming response.

A new Internet-connected software application, called “ivi tv”  http://www.ivi.tv/, was released this week that allows pc, mac and linux end users to stream live feeds from over-the-air television stations to their computers anywhere in the world, including feeds from ABC, CBS, Fox, NBC, PBS, Telemundo, Univision and others. The small Seattle-based start-up behind the service, Ivi, Inc., currently charges user $4.99 a month for access, with the option to add DVR functionality for an extra 99 cents, and plans to expand the service to mobile devices and other platforms in the coming months.

Unlike other online content distributors, the start-up has allegedly sidestepped negotiating with the copyright holders for the license of its programming, and has instead elected to wager its future on a seemingly liberal interpretation of certain provisions of the Copyright Act (the “Act”), which permit qualifying “cable systems” to rebroadcast over-the-air television signals upon the payment of certain statutorily mandated revenues. Specifically, the Act’s compulsory licensing scheme (see Section 111) allows cable systems to carry distant broadcast signals while compensating copyright owners for the public performance of their works, without the transaction costs associated with marketplace negotiations for the carriage of copyrighted programs, and instead requires that the cable system remit a fixed portion of their revenues for the retransmission of such programming to the copyright holders. Based on statements from ivi, Inc.’s management, the company has already taken steps to comply with the requirements under Act, and is apparently taking the position that its service does, in fact, qualify as a “cable system”. Continue Reading »

Earlier this week, in a decision that could have implications for the many media and technology companies providing streaming and on-line subscription services, the Federal Circuit upheld a district court’s grant of summary judgment in favor of RealNetworks in a patent infringement suit brought by Friskit, Inc.  The decision relied on the U.S. Supreme Court’s 2007 decision in KSR Int’l v. Teleflex, a case that substantially altered the framework to assess the patentability of inventions.  (HHR filed amicus briefs on behalf of a number of large technology companies in KSR at the certiorari stage and at the merits stage.  For a more detailed discussion of the KSR decision, here is an eAlert we prepared shortly after that decision was made.) Continue Reading »

  Royalty Rate Analysis

After months of hearings, testimony and deliberations, on October 2, 2008, the United States Copyright Royalty Board (CRB) announced newly established rates for royalties to be paid to writers and composers (as opposed to performers) whose musical compositions are made and distributed as sound recordings (i.e., phonorecords), including via (1) physical recordings (e.g., CDs, tapes, vinyl, etc.), (2) permanent digital downloads, (3) ringtones, (4) limited/tethered digital downloads and (5) interactive streaming. Continue Reading »

As we previously noted, it was recently reported that in the midst of the Copyright Royalty Board (CRB) hearings, the publishers, record labels and digital music providers (DiMA) agreed to a settlement on the royalty rates for limited downloads and Internet streaming, that are scheduled to ratified this October by the CRB. Given the sides’ position throughout the process on this issue was so far apart, it seemed as though these rates, in particular, would certainly be left to be decided by the CRB judges. But in the wake of this news of agreement, the logical conclusion is that the parties agreed on a revenue equation for the rates, as has been the case in other countries for publishing royalties, where the publishers are guaranteed the greater of a certain percentage of revenue or an amount per subscriber, download, stream, play, etc. Continue Reading »