• by Wendy Davis , Staff Writer @wendyndavis, February 1, 2011

A coalition of digital rights groups is backing ivi TV, a start-up online video distributor, in its legal battle with television broadcasters and content providers.

Public Knowledge, Electronic Frontier Foundation, Media Access Project, and the Open Technology Initiative this week filed a proposed friend-of-the-court brief asking U.S. District Court Judge Naomi Reice Buchwald in New York to deny the broadcasters' request for a temporary restraining order shutting down ivi. The online video distributor, which launched in September, offers $5 a month subscriptions to its service. ivi TV makes streams of TV shows that are broadcast for free in select cities (New York, Seattle, Chicago and Los Angeles) available online, while they are being broadcast.

ivi argues that it's allowed to retransmit the programs because the federal Copyright Act provides for mandatory retransmission licenses to companies such as itself. "There is no theft or piracy, but rather a mandatory license under which ivi is statutorily allowed to make secondary transmissions of content originating with the media companies," ivi asserts in its legal papers.

But the broadcasters who are suing say that ivi is interpreting the copyright law too broadly and that the provision it is relying on applies only to "cable systems."

Of course, that argument raises the question of how to define cable systems.

ivi says that the definition "was intended to be very broad and to anticipate new technologies that might be used as a means of transmission."

The broadcasters counter that ivi's view means that "anyone with a computer, an Internet connection and a TV antenna can become a 'cable system' entitled to compulsory licensing."

The broadcasters obviously hope that a judge views that interpretation as absurd, but the digital rights groups don't think it's absurd at all. On the contrary, they embrace it. "America's legal system favors competition, not monopoly, and the law does not grant special privileges to 1970s-era cable operators while discriminating against new entrants that offer a substantially similar service," they argue.

Public Knowledge, EFF and the other groups also argue that as a practical matter, a host of other companies already enable consumers to stream TV programs to their computers. Those products make it hard for the broadcasters to argue that they need an injunction before the case is argued on the merits.

The digital rights groups also argue that companies like ivi serve another purpose: they help create demand for high-speed Web access, which in turn gives Internet service providers more incentives to expand broadband to those areas that still lack the service.

Buchwald will hold a hearing Wednesday in federal district court in Manhattan on the broadcasters' request for a temporary restraining order.