Craving Copyright Protection:

The Legality of iCraveTV Webcasts in Canada[1]

 

By: Justin J. Walsh[2]

April 2000

 

 

Introduction

In the first week of December 1999, Internet start-up iCraveTV captured the attention of broadcasters, Hollywood studios and professional sports leagues when it began to pull down television signals from the Toronto sky and “rebroadcast” them around the world via the Internet.  The company did not ask permission to broadcast the copyrighted content over the Internet, nor were royalties paid to the content owners and thus the legality of the site was questioned and the powerful American sports and entertainment industries attempted to shut down the website.

            This analysis of iCraveTV will examine the copyright laws of Canada and the United States as they pertain to content on the Internet.  The bases for the two suits in Pennsylvania will be critiqued to highlight the differences between Canadian and American copyright and broadcasting laws and the impact of the Canadian Radio-television and Telecommunications Commission’s Report on New Media on iCraveTV will be analysed.  Additionally, the motivations for the lawsuit by the television broadcasters, the motion picture industry and the professional sports leagues will be scrutinized with an eye toward technological and entertainment industries’ convergence. 

            This paper concludes that while presently an examination of iCraveTV operations vis-à-vis Section 31 of the Canadian Copyright Act is the proper foundation for analysis, further improvements in streaming technology will make compliance with this section a non-issue since increased bandwidth will allow television content to be transmitted over the Internet without any significant alterations.

 

History of iCraveTV[3]

            The brainchild of William R. Craig, iCraveTV made use of existing technology to beam Canadian and American television content over the Internet.  In announcing the service, Craig said, “Canada has a long and illustrious record in the telecommunications world, and we are proud to be able to take further advantage of our leading edge by developing this “first in the world” service.  The integration of television and the internet, which many thought would be years away is a reality right now….”[4] The concept behind iCraveTV was simply to pull down analog television signals from seventeen television signals available over Toronto and simultaneously digitalise and compress them, and retransmits over the Internet by using RealPlayer’s media player.  RealPlayer essentially consists of a small screen that streams the audio and video digital information as it reaches a user’s computer.  The viewing area is adjustable but as it is enlarged, the poorer the picture quality.  Only a few seconds of programming is stored on iCraveTV’s servers at any moment. 

            After entering a Canadian area code to prove the user is in Canada, the user is presented with a channel guide.  The area code security feature to limit users to those in Canada was easily circumvented and, arguably, iCraveTV’s principals intended viewers from outside Canada since the same page included iCraveTV’s Toronto phone number with the ‘416’ area code.  To avoid this screening process in future visits, the iCraveTV site deposits a “cookie” on the user’s computer.  The cookie stores information that makes it unnecessary to go through the screening procedure on subsequent visits to the site. 

From the channel guide, users had a choice of seventeen stations with most originating from Buffalo, New York, and Toronto, Ontario.  Once the user chose a program, the signal was rebroadcast to the user’s computer.  Audio and video streaming improved with the speed of the Internet connection since better buffering of data occurred.  Thus, a user with a 28.8 modem Internet connection would experience eroded quality as compared to a user with a high-speed cable connection.

            The purpose of the iCraveTV website was to use programming to maximize ‘hits’, or visits, to the site.  This allowed William Craig and his team to promote them and to sell advertising to third parties.  While the commercials that would have been seen on television were not interfered with, the viewing area was framed with paid commercial advertisements.  William Craig has stated that he believes that as long as his company does not cut or insert its own commercials into the programming itself and ultimately pays copyright owners for their work, iCraveTV’s actions are completely legal.[5]  By utilizing the content of television broadcasts, iCraveTV could attract a higher number of hits to its site and could attract advertisers wishing to be associated with the programs.  

Within a week of coming on-line on November 30, 1999, iCraveTV captured the attention of Canadian and American broadcasters and the National Football League.  By December 1999, Canadian broadcasters Global Television Network, CTV and affiliates of U.S. broadcasters ABC, NBC, CBS and WB file “Cease and Desist” orders on iCraveTV but the company continued to stream the television signals over the Internet.[6]  While the lawyers for the opposing sides met, Craig advised the interested parties to negotiate compensation through the Canadian copyright tribunal.  The same tribunal allows cable and satellite companies to pick up and extend the reach of broadcast signals.[7]  Thus, Craig had forwarded the analogy that iCraveTV was rebroadcasting over the Internet in a manner similar to cable companies like Rogers. 

            Interestingly, Ted Rogers of Rogers Communication was amongst the Canadian complainants seeking damages from iCraveTV.  Ted Rogers built his cable empire in the 1960s and 1970s by pirating U.S. television signals.  “Rogers got a free ride until 1990, when, in negotiations related to the Canada-U.S. Free Trade-Agreement, Canadian cable companies agreed to pay royalties to the broadcasters”.[8]  The difference between William Craig in 1999-2000 and Ted Turner in 1960s-1980s is that from iCraveTV’s inception, Craig has offered to pay royalties in Canada for the retransmission of television signals.

On January 20, 2000, American entertainment[9] and professional sporting league[10] behemoths filed lawsuits in Pennsylvania against iCraveTV.com, TVRadionow Corp., William R. Craig Consulting, William R. Craig and George Simons.  The National Football League and the National Basketball Asociation (“Sports Leagues”) filed suit on the grounds of direct and contributory copyright infringement and state law tortuous interference.  The motion picture industry filed suit primarily on the grounds of copyright infringement, trademark infringement and false representation.  For the purposes of this essay, the discussion below will be limited to the copyright issues.

A U.S. judge issued a preliminary injunction on iCraveTV on February 8, 2000, to last at least three months, ten days after another U.S. judge issued a temporary restraining order against the company.  The injunctions prohibited iCraveTV from broadcasting its signals into the United States.  Since iCraveTV had not developed the technology to contain its broadcasts within Canada, the injunctions effectively shut down iCraveTV’s operations.[11]  Although continuing to believe the company was operating within Canadian law, iCraveTV’s Craig stopped transmitting signals on the Internet in return for the withdrawal of three Canadian and U.S. lawsuits.  The settlement occurred on February 28, 2000.

THE U.S. SUITS

            Owners of copyright in audiovisual work such as television programs or motion pictures are granted exclusive rights under the U.S. Copyright Act.[12]   The Act accords the copyright owner of a television program or motion picture the exclusive right to perform, to display that work publicly, and to authorize a public performance or display of the copyrighted work.  The motion picture industry submitted in its complaint that these broad rights included the right to control public performance of copyrighted works “…in any medium, whether in movie theatres, through television broadcasts, through non-broadcast media such as cable or satellite, or through on-line methods, including World Wide Web sites on the Internet.”[13]  The studio and network plaintiffs highlighted the fact that they license works across the U.S. as well as to Canadian television stations, “…including the television stations being unlawfully “streamed” by defendants into the United States.”[14] 

            The first count, of seven filed by the entertainment industry, was that iCraveTV, et al, violated the exclusive rights of the plaintiffs under § 106 of the Copyright Act.  The plaintiffs listed a number of violations including that the defendants are: (a) publicly performing and displaying the works in the United States without the consent of plaintiffs; (b) creating and publicly displaying the works in the United States unauthorized derivative works based on plaintiffs’ copyrighted works; (c) violating the exclusive rights of plaintiffs under U.S. law in other copyrighted works; and (d) contributorily infringing plaintiffs’ copyrights by knowlingly and materially contributing so infringements by other persons.[15] 

            The entertainment industry’s request for relief[16] included the usual call for costs and damages but also included two requests of unique interest.  The most interesting request was that the Court require the defendants to take appropriate action to prevent any person in the United States from having access to the iCraveTV website “…or any other Internet site, whether currently in operation or otherwise, which includes plaintiffs’ copyrighted works without plaintiffs’ authorization.[17]  The other request worthy of note was that the Court requires the defendants and those associated with them to “…take appropriate action to prevent any person outside of Canada from having access to the iCraveTV.com site for so long as that site publicly performs plaintiffs’ copyrighted works.”[18]

            The wording of the entertainment industry’s requests suggests that the entertainment industry is asking the Court to extend American jurisdiction over Canada and the rest of the world.  Although the Court clearly would be considered acting within its jurisdiction for acting on the copyright infringement committed in the United States, the iCraveTV process of pulling down analogue broadcast signals, digitalisation and retransmission over the Internet, occurs in Canada.  The alternative suggestion by the Sports Leagues that the Court has personal jurisdiction over the defendants pursuant to 42 Pa. Stat §§ 2201 and 2202 is more logical since Craig had operated a business within the past year in Pennsylvania and registered an Internet domain name using a Pennsylvanian address in October 1999.[19]  Additionally, the International Sales Manager for TVRadioNow Corporation, George Simons, still resides in the Pittsburgh, Pennsylvania region.       

However, the entertainment industry requests also suggest that if William Craig and iCraveTV develop an effective method to limit viewers to those geographically in Canada, then iCraveTV would be free to operate in substantially the same manner as it had.  Coincidentally, Mr. Craig claims to have asked a team of software programmers to design an “I-wall” that will prevent webcasts from crossing the Canada-U.S. border.[20]      

The NFL and NBA suit similarly claims that iCraveTV’s capture, alteration, and streaming of the Sports Leagues’ game telecasts over the Internet violate exclusive rights protected by Sections 106 and 501 of the Copyright Act.  The suit claims that the actions of iCraveTV “…constitute wilful and unauthorized reproduction, distribution, public performance, and public display of copyrighted works, and the unauthorized creation of derivative works, within the United States.”[21]  The Sports Leagues claimed direct and contributory copyright infringement by iCraveTV.  The Suit makes a strong point when it states that:

“By transmitting programming that the Sports Leagues have exclusively licensed to others, and by framing competing advertising material adjacent to that programming, iCraveTV has made the Sports Leagues’ performance of their contracts more burdensome and has interfered with the benefits that their telecast licensees bargained for when they contracted for exclusive telecast rights of the Sports Leagues’ game telecasts.”[22]  

 

 

A case analogous to the iCraveTV situation is Washington Post v. TotalNews, Inc.[23] TotalNews’ website[24] provided links to various news sources, including those operated by the Washington Post, Time-Warner, Cable News Network (“CNN”), Times-Mirror, Dow Jones, and Reuters.[25]  When a viewer hyper-linked to one of the news sources from the TotalNews site, the selected site was actually drawn into the TotalNews website and displayed as part of it.  However, not all the content of an external news-source site was displayed.  Rather, in a manner similar to iCraveTV’s website, the viewer saw five independent frames containing the following:

·         A large, right-centered frame that displayed the external site’s content;

·         A small, rectangular frame located in the lower left-hand corner that displayed the TotalNews word mark;

·         TotalNews’ URL displayed as the current URL address in the upper portion of the screen;

·         A vertical frame on the left-hand side that contained a menu of hyperlinks to plaintiffs’ news services; and,

·         A horizontal frame along the bottom of the screen that displayed commercial advertising sold by TotalNews.[26]

 

Hence, the contents of the external news websites, such as the Time website, were displayed surrounded by frames containing the TotalNews logo, URL and advertising sold by TotalNews.  This visual design is similar to that employed by iCraveTV.  The one significant difference is that the content available on the iCraveTV was not available elsewhere on the Internet although each of the complainants had an Internet presence.  Rather, the content was originally found on television.  Overall, the two matters are closely related so the TotalNews situation should provide some clarity in examining American copyright law and framing issues.

            On February 20, 1997, the first complaint to challenge framing in the Internet context was filed in the Southern District in New York by the Washington Post, et al, against TotalNews and its affiliates.  In their complaint, the plaintiffs alleged that TotalNews had “…engaged in the Internet equivalent of pirating copyrighted material from a variety of famous newspapers, magazines, or television news programs; packaging those stories to advertisers as part of a competitive publication or program produced by Defendants; and pocketing the advertising revenue generated by their unauthorized use of the material.”[27]  In all, the plaintiffs alleged nine causes of action, however this paper will limit itself to an examination of alleged copyright infringement. 

            Unfortunately for observers looking for legal guidance regarding copyright and the Internet, a settlement between the parties was reached on June 5, 1997 whereby TotalNews agreed that it would no longer frame any of the plaintiffs’ websites.[28]  Accordingly, no legal precedent was set.  However, the framing activities of websites such as TotalNews and iCraveTV may be actionable under American copyright infringement laws. 

The sports leagues and the entertainment industry make strong arguments for why iCraveTV should be held accountable for the streaming of copyrighted programming but the suits would have been more properly filed in Canada.  The sporting and entertainment industries are adamant in protecting their intellectual property since content creation is the essence of their respective industries. Without copyright protection, they risk revenue leakages that may result in financial losses that could threaten the entertainment industry’s existence.  The iCraveTV operations would have likely been found in violation of American copyright laws if the parties had not reached a prior settlement.  Since the iCraveTV website operated out of a Toronto location, Canadian laws are relevant and as such, must be examined.  What follows is an analysis of the legality of iCraveTV’s operation according to Canadian laws.

 

Legality of iCraveTV in Canada

1.    Copyright Law in Canada

Canadian and American copyright rules are similar but some significant distinctions exist.  Section 3 of the Copyright Act[29], which follows, contains wording similar to §106 of the U.S. Copyright Act[30]:

3. (1) For the purposes of this Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right …

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, …

and to authorize any such acts.

iCraveTV was in violation of Section 3 of the Copyright Act if the company engaged in reproducing copyright works and communicating the work to the public by telecommunication without authorization.  However, the iCraveTV operation was arguably not the reproduction of the copyrighted content without authorization but rather the retransmission of content.  If the iCraveTV operation is considered a retransmission of content, then the key to the iCraveTV Canadian copyright question rests on how iCraveTV’s webcasting is defined and on the interpretation of section 31 of the Copyright Act, which reads as follows:

31. (1) In this section,

"retransmitter" does not include a person who uses Hertzian waves to retransmit

a signal but does not perform a function comparable to that of a cable

retransmission system

"signal" means a signal that carries a literary, dramatic, musical or artistic

work and is transmitted for free reception by the public by a terrestrial radio

or terrestrial television station.

Retransmission of local signals

(2) It is not an infringement of copyright to communicate to the public by

telecommunication any literary, dramatic, musical or artistic work if

(a) the communication is a retransmission of a local or distant signal;

(b) the retransmission is lawful under the Broadcasting Act;

(c) the signal is retransmitted simultaneously and in its entirety, except as

otherwise required or permitted by or under the laws of Canada; and

(d) in the case of the retransmission of a distant signal, the retransmitter has

paid any royalties, and complied with any terms and conditions, fixed under this

Act. …

            Section 31 must be read in conjunction with § 71 of the Canadian Copyright Act that provides for a mandatory licensing system with regard to retransmissions. Although no Canadian precedent has been set regarding § 31, the retransmission right can be understood as the author having lost the right to authorize and negotiate a form of broadcast of his/her work in Canada.  Rather, the distributor, in essence iCraveTV, would need to submit a pecuniary consideration for the copyright holder as established by the Copyright Board.   Thus, the legality of iCraveTV’s operations in Canada hinges on § 31 and as such, each of the elements of §31 warrants separate examination. 

 

§31(2)(a)

The seventeen stations available through the iCraveTV website were freely available in Toronto including signals originating from network affiliates in Buffalo, New York.  The communications over the Internet were arguably a retransmission of a local or distant signal, which is not an infringing use according to §31(2)(a).  As such, this element of the Act is not a central hurdle to overcome but the other three elements present more difficulty.

 

§31(2)(d)

If the iCraveTV broadcast is deemed a retransmission of a distant signal, then the company may escape unscathed since William Craig has maintained his willingness to pay any royalties as set by the Canadian Copyright Board.  How the rate would be set is more difficult to determine than with cable and satellite operations.  Fair rates can easily be determined for cable and satellite operators since they can accurately determine their number of subscribers who pay for broadcast signals.

The iCraveTV system, on the other hand, relies on hits to its website rather than registered subscribers so it is more difficult to establish a reasonable royalty rate.  Ben Ivins, senior associate general counsel at the National Association of Broadcasters, has suggested that iCraveTV be levied 70 cents per hit to the website.[31]  The Canadian Copyright Board will need to address the concerns of the entertainment and sporting industries regarding the use of their copyrighted programmes and strike a balance between those concerns, the viability of iCraveTV and the wants and needs of Canadian consumers.  The Board will need to consider additional terms and conditions since traditional broadcasters are subject to rules that regulate, for example, the type of allowable advertising.          

 

§31(2)(c)

This section is the most difficult for iCraveTV to comply with due to current structural limitations of the Internet.  The Sports Leagues have argued that the programming streamed by iCraveTV over the Internet is a transformed and altered version of the captured television signals.[32]  There is a few second delay between what is broadcasted from the television stations and what is retransmitted over iCraveTV.  The time lag can be explained by the necessity of digitalising and compressing the analogue signals and then the Internet process of sending fragments of information in packets that must then be placed back in order before the altered signal appears on-screen. 

            The audio and visual quality of what was received by the iCraveTV viewer was inferior to the original signal.  This is due to the shortcuts necessary for the broadcasts to make it over the Internet infrastructure.  Essentially, this means that fewer images per second are viewed over the Internet as compared to a regular television, resulting in a more jerky and grainy picture and garbled sound.  Despite such shortcomings in quality, Internet users enjoyed the opportunity to view their favourite show or to watch a basketball or football game in the corner of their computer monitors while they worked on other tasks. 

            ICraveTV altered television broadcasts in another significant manner since to save valuable data space, it did not send the vertical blanking interval over the Internet.  Of concern here is that the vertical blanking interval contains close-captioning information as part of the broadcast.  The Sports Leagues, for example, stated that close-captioning “…is an integral portion of the Sports Leagues’ copyrighted works that allows hearing-impaired viewers to enjoy the play-by-play narration of the game telecasts and facilitates the viewing of such telecasts in noisy venues, such as airport lounges and restaurants.”[33]  Such an alteration may be viewed as not transmitting a signal in its entirety and thus iCraveTV may fall outside the definition of a retransmitter. 

            The “simultaneously and in its entirety” distinction may be a moot point in Canada within the next five years as television signals are all digitized and broadband increases to Internet infrastructure allow for unaltered Internet retransmission of television signals.  However, presently and in the near future, §31(2)(c) may limit iCraveTV and its followers from retransmitting television signals over the Internet in Canada unless lawmakers carve out an exception for Internet companies.   

 

§31(2)(b)

The retransmission does not appear to violate any section of the Broadcasting Act [34].   In fact, the Canadian broadcasting system “should be regulated and supervised in a manner that … is readily adaptable to scientific and technological change; facilitates the provision of broadcasting to Canadians … [and] does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians…”.[35]  Further analysis of the Broadcasting Act and the position of the CRTC on Internet webcasting will elucidate the legality of iCraveTV’s operations. 

 

2.    The Broadcast Act & The CRTC Report on New Media

The Broadcasting Act is administered by the Canadian Radio-television and Telecommunications Commission (hereinafter “the CRTC” or “the Commission”).  Upon learning of iCraveTV’s actions, a spokeswoman for the CRTC claimed that, “this is the type of service we envisaged on the Internet when we examined new media”.[36]  The Report on New Media[37] was released by the CRTC on May 17, 1999.  The CRTC decided that in order to foster the growth of new technology in Canada, it would not interfere with the Internet at that time.  Chairwoman Françoise Bertrand boldly stated that the CRTC “will not regulate new media services on the Internet…[and] will not regulate any portion of the Internet”.[38]  In furtherance of its announcement, the Commission issued a proposed exemption order “…without terms or conditions in respect to all undertakings that are providing broadcasting services over the Internet, in whole or in part, in Canada”.[39]  William Craig has repeatedly relied on the CRTC’s reluctance to regulate the Internet in asserting that the law is on his side.

The CRTC was mistaken in its assumption that key technological developments must take place “…before new media services and distribution systems compete more directly with traditional media”.[40]  As iCraveTV demonstrates, existing technology can be used to broadcast content traditionally found on television over the Internet.  Although the picture quality does not yet match the quality of content through traditional television and cable because of limitations on bandwidth and modem speeds, the adoption of cable and DSN lines by consumers is allowing for faster and higher quality transmissions of audio and video over the Internet. 

The potential impact of iCraveTV and its model of framing television programmes with banner advertisements alarmed traditional broadcasters.  By making shows available in different time zones may adversely affect the amount that advertisers are willing to pay for ad time on television.  Suppose a significant number of people watch, for instance, NYPD Blue in the Western Time Zone at seven p.m. rather than the normal 10 p.m. because of its availability from a Buffalo station’s rebroadcast over the Internet.  Potential advertisers in Vancouver may not be as willing to pay a premium to air a television spot on a local broadcast of the show at 10 p.m. and may demand to pay a reduced rate since less people may be watching the show at that time.  As well, the advertiser may decide to pay a much lower price to have a banner ad frame the NYPD rebroadcast over the Internet in its entirety at the earlier time. 

In the Report on New Media, the CRTC reported that:

It was also submitted that when advertisers recognize the consumer migration to new media, this will drive further development of new media and attract more customers away from traditional broadcasters to the Internet. The suggestion was made that, when this occurs, the value of advertising on the Internet with this large consumer base will be recognized and may unleash a wave of advertisers onto the Internet, with a dramatic negative impact on traditional media advertising budgets. However, there was no evidence submitted that points to such a sudden and large shifting in advertising resources to new media.[41]

 

However, the commercial benefits of allowing free reign to new media trailblazers, such as iCraveTV far outweigh the negative impacts.  A positive consequence of the iCraveTV model is that advertisers without a tremendous budget would be able to afford a banner ad since the costs are much lower than the cost of producing and airing a television commercial in prime time.  This levelling of the advertising playing field benefits consumers by furthering competition between greater numbers of businesses.  Another advantage of the iCraveTV model is potential customers could learn more about the advertiser and may be induced to make a purchase by simply clicking on the banner ad.   Improved customer awareness of a company and its products is encouraged through the use of linkable banner ads surrounding streamed content and customer convenience is increased by allowing shopping and television watching to simultaneously occur.  By rebroadcasting television signals over the Internet, advertisers can more easily interact with customers.  Accordingly, iCraveTV represents a furtherance of an e-commerce objective of increasing business-to-consumer information and sales.  

iCraveTV was not broadcasting long enough to contract with many advertisers but both small and large companies expressed interest in placing banner ads around the rebroadcasts. In the Report on New Media, the CRTC found that:

Most participants were of the view that new media advertising has not, thus far, had a negative impact on the traditional media advertising industry in any significant way. Some consider that the "advertising pie" is getting larger, with the new media industry reaping incremental advertising dollars due to the increased sales that Internet advertising generates. The participants considered that the greater value of reaching more targeted audiences and getting more activity from those audiences as a result of the advertising is being recognized.[42]

 

In its brief existence, iCraveTV exhibited the characteristics envisioned by both pessimistic and optimistic New Media participants.   The Internet upstart iCraveTV allowed greater access for smaller advertisers to reach a greater number of potential customers.  They would have previously been excluded from reaching out to television viewers because of the high costs.  Conversely, some advertisers who could afford television commercials, such as Columbia Sportswear, considered reaching television viewers over the Internet instead. 

 

3.    Jurisdictional Concerns

iCraveTV has presented jurisdictional problems when administering copyright and broadcast laws on the Internet because of the slightly different policy stances taken by the Canadian and American governments.   The Canadian “hands-off” Internet policy was meant to foster innovation and to allow for rapid advances in Internet technology and infrastructure that would benefit all businesses and consumers.  By allowing for the retransmission of televised content in an unaltered form, consumers are offered another competitive choice in deciding in what manner to receive television content into the home.  In Canada’s vast and sparsely populated northern territories, receiving television programmes retransmitted over the Internet is an economical alternative to cable and satellite connections.  Canada’s broadcast policy to not regulate the Internet can be seen as helping to include isolated populations into the mainstream of North American society.  The retransmission of the entertainment and sports industries’ content may increase cultural understanding in the northern communities (but those communities must utilize the Internet, as well, to help foster an understanding of culture and concerns unique to the North amongst other Canadians).    

The potential benefits of Canadian Internet and broadcast policies are many, however, the concerns of the copyright holders must also be considered.  The interpretation of §31 of the Canadian Copyright Act may influence whether future complainants choose to utilize the Canadian legal system to address copyright infringement on the Internet.  If the provision is interpreted widely, then iCraveTV may be in violation of §31(2)(c) and thus may be satisfactory to American copyright holders.  However, if iCraveTV operations do not violate Canadian copyright laws, then jurisdictional issues may arise since Canada could become a safe harbour for Internet entrepreneurs seeking to circumvent American copyright laws by claiming that content is being retransmitted rather than reproduced.   Unfortunately, no decision will be made by Canadian courts on the issues raised by iCraveTV’s streaming of television content over the Internet so legal precedent remains to be set and the jurisdictional issue remains to be settled.[43]

 

Conclusion

As technology improves, questions concerning “retransmission” will disappear.  Currently, the limitations of the Internet’s packet switching technology have resulted in the streaming of less than one hundred percent of the original transmissions.  With continued exponential improvement of Internet and new media technology, iCraveTV and followers will be able to stream unaltered content originating from broadcasters over the Internet.  Once streaming technology improves, more traditional television viewers will be attracted to viewing their favourite programmes over the Internet.  This will increase the demand for advertising space around the viewing area. 

As more viewers and advertisers are attracted to websites like iCraveTV, the major content providers will offer the option of viewing television content from their own websites.  Since content holders have already envisioned these future trends, the entertainment and sporting industries rabidly protect content copyright in the present.  Content providers concern themselves with all aspects of their product.  Thus, uncontrolled banner advertising around broadcasted content is not satisfactory to copyright holders. This dissatisfaction will not be assuaged by payments made to the Canadian Copyright Board as long as prior permission to retransmit content over the Internet is not sought.  However, the U.S. suits suggest that if iCraveTV effectively employs technology limiting viewers to those physically in Canada, then there would not have been such an impetus to have the website shutdown.

 

 

Appendix A

iCraveTV TIMELINE

 

30 November 1999

·        iCraveTV begins rebroadcasting of television signals over the Internet by utilising RealPlayer 

·        Frames the viewing area with commercial advertisements    

 

1^st Week December 1999

• ICraveTV captures the attention of Canada’s major broadcasters
• Captures attention of American broadcasters and the National Football League

 

On or before 15 December 1999

• Canadian broadcasters Global Television Network, CTV and affiliates of U.S. broadcasters ABC, NBC, CBS and WB file “cease and desist” orders on iCraveTV
• Orders ignored
• William Craig advises the interested parties to negotiate compensation through the Canadian copyright tribunal

 

16 December 1999

• Canadian production company, Salter Street Films Ltd., agrees to work with iCraveTV

 

20 January 2000

• Motion Picture Association of America, the National Football League and the National Basketball Association file a copyright infringement lawsuit in Pennsylvania against iCraveTV.com, TVRadionow Corp., William R. Craig Consulting, William R. Craig and George Simons

 

8 February 2000

• U.S. judge issues a preliminary injunction for at least three months on iCraveTV

 

28 February 2000

• iCraveTV stops transmitting signals on the Internet

• William Craig settles

 

 

Bibliography

Relevant Acts & Cases & Public Notices

 

 

Braintech, Inc. v. Kostiuk (1999 BCCA 0169).

 

Broadcasting Act, Chapter B-9.01 (1991, c. 11).

 

Canadian Radio-television and Telecommunications Commission, "The Report on New Media", Telecom Public Notice CRTC 1999-84, Telecom Public Notice CRTC 99-14, Ottawa, ON (May 17, 1999), http://www.crtc.gc.ca/archive/Notices/1999/PB99-84.htm

 

Copyright Act, R.S.C. 1985, c. C-42.

 

National Football League, National Basketball Association and NBA Properties, Inc. v. TVRadioNow Corporation d/b/a iCraveTV.com and TVRadioNow.com, William R. Craig Consulting, William R. Craig, and George Simons (Pennsylvania D.C., West. Dist.) Civil Action 00-120. Accessed Jan. 21, 2000 at http://www.blaney.com/ecommerce/icravetv.pdf

 

Software Publishers Alliance, “Digital Millennium Copyright Act (DMCA) - DRAFT Basic Summary”, http://www.spa.org/gvmnt/iprt/dmcasumdraft.htm.

 

Twentieth Century Fox Film Corporation, Disney Enterprises, Inc., Columbia Tristar Television, Inc., Columbia Pictures Television, Inc., Columbia Pictures Industries, Inc., Metro-Goldwyn-Mayer Studios Inc., Orion Pictures Corporation, Paramount Pictures Corporation, Universal City Studios, Inc., Time Warner Entertainment Company, L.P., ABC, Inc., CBS Broadcasting Inc. and Fox Broadcasting Company v. iCraveTV, TVRadioNow Corp., William R. Craig, William R. Craig Consulting, and George Simons (Penns. D.C., West. Dist.) Civil Action 00-121.  Accessed Jan. 21 at http://www.blaney.com/ecommerce/icravetv2.pdf

 

U.S. Copyright Act (17 U.S.C.)

 

Wash.Post v. TotalNews, Inc. No. 97 Civ. 1190 (PKL) (S.D.N.Y. filed Feb. 20, 1997).

 

Wash.Post v. TotalNews, Inc. No. 97 Civ. 1190 (PKL) (S.D.N.Y. entered on June 5, 1997).

 

 

News Articles (by Date)

 

Canadian Radio-television and Telecommunications Commission, “CRTC Won’t Regulate the Internet”, Ottawa, ON (May 17, 1999)

http://www.crtc.gc.ca/ENG/NEWS/RELEASES/1999/R990517e.htm

 

Canadian Radio-television and Telecommunications Commission, “Speech: Notes for an address by Françoise Bertrand, Chairperson, Canadian Radio-television and Telecommunications Commission on the occasion of the release of the Report on New Media”, Ottawa, ON (May 17, 1999), http://www.crtc.gc.ca/ENG/NEWS/SPEECHES/1999/S990517e.htm 

 

Simon Tuck, "Internet is regulated enough, CRTC says", The Globe and Mail (May 18, 1999).

 

Natalie Southworth, "Asper criticizes CRTC over TV restrictions", The Globe and Mail (May 18, 1999).

 

Tyler Hamilton and Lawrence Surtees, “Major broadcasters upset at upstart Webcaster: Signals sent free on Net may prompt legal action”, The Globe and Mail (December 3, 1999).

 

Barbara Shecter, “Rebel web broadcaster expands to the West: iCraveTV creates uproar”, Financial Post from National Post (December 16, 1999).

 

Susanne Craig, “iCraveTV.com finds ally in Salter: Productions firm receptive to upstart that has beamed TV stations on-line”, The Globe and Mail (December 17, 1999).

 

Peter Morton and Barbara Shecter, “Hollywood seeks to crush iCrave TV: Movie studios, the NFL and the NBA sue Toronto upstart over alleged copyright infringement”, Financial Post from National Post (January 21, 2000) C1.

 

Brian McWilliams and John Townley, “iCraveTV.com Gets First-Round Setback”, InternetNews.com (January 31, 2000), http://canada.internet.com/can-news/print/o,1089,141_296881,00.html 

 

Eric Reguly, “iCraveTV a villain? Even Ted Rogers was once a pirate, Eric Reguly says”, The Globe & Mail (February 5, 2000) B9.

 

Susanne Craig, “Court order keeps iCrave TV off air for at least three months”, The Globe and Mail (February 9, 2000) B1.

 

Mark Evans, “iCrave TV waves white flag in Web rebroadcasting battle”, The Globe and Mail (February 29, 2000) B1.

 

Peter Morton, “iCraveTV shuts off webcasts: ‘They’re gone’”, Financial Post from National Post (February 29, 2000) C1.

 

John Townley, “iCraveTV Settlement Shuts Down Site”, InternetNews.com (February 29, 2000), http://canada.internet.com/can-news/print/0,1089,141_312161,00.html       

 

Peter Morton, “iCraveTV’s Craig set to go with new specialty service: Undaunted by media giants”, Financial Post from National Post (March 2, 2000), http://www.nationalpost.com/financialpost.asp?f=000302/220733

 

Gerry Blackwell, “iCrave just a hint of things to come”, Toronto Star (March 9, 2000) F2. 

 

 

 

 

Substantial Articles, Notes & Reports

 

John Perry Barlow, “The Economy of Ideas: Everything You Know About

Intellectual Property is Wrong”, Wired Magazine (March 1994), http://www.wired.com/

 

Tom W. Bell, "Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine", 76 N. Carolina L. Rev. 557 (1998),  http://members.aol.com/tomwbell/papers/FullFared.html.

 

Françoise Bertrand, "Speech: Notes for an address on the occasion of the release of the Report on New Media", Canadian Radio-television and Telecommunications Commission (Ottawa, ON: May 17, 1999).

 

Dan L. Burk, “Mudy Rules for Cyberspace”, 21 Cardozo L. Rev. 121 (October 1999).

Kai Burmeister, “Jurisdiction, Choice of Law, Copyright, and the Internet: Protection Against Framing in an International Setting”, 9 Fordham Intell. Prop. Media & Ent. L.J. 625 (1999).

 

Raymond Chan, “Internet Framing: Complement or Hijack?” 5 Mich. Telecomm. Tech. L. Rev. 143 (1999), http://www.mttlr.org/volfive/chan.html

 

 

David Colville, “Convergence, Culture and Multimedia: Canada’s Dynamic Regulstory Framework (notes for an address by David Colville, Vice-Chairman, Telecommunications Canadian Radio-television and Telecommunications Commission for the Harvard University Lecture Series)”, CRTC (May 6, 1999), http://www.crtc.gc.ca/ENG/NEWS/SPEECHES/1999/S990506e.htm

 

Dale A.J. Dietrich, "Legal Issues Affecting Canadian Based Electronic Commerce Undertakings", IT Industry Series on Intellectual Property, Centre for Property Studies U. of New Brunswick (7 May 1998), http://www.SmithLyons.ca/it/econ, pp.1-51.

 

Gordon A. Gow, “Copyright Reform in Canada: Domestic Cultural Policy Objectives and the Challenge of Technological Convergence”, (December 1995), http://www.sfu.ca/~gagow/capcom/cpyrght.htm

 

Mark S. Hayes, “Internet Copyright Infringement in Canada”, Industry Canada,

http://strategis.ic.gc.ca/SSG/it03023e.html

 

Sunny Handa, “A Review of Canada’s International Copyright Obligations”, 42 McGill L.J. 961 (September 1997).

 

Michael S. Koch, "Square Pegs and Round Holes: CRTC Regulation of the Internet", Smith Lyons (1996), http://www.SmithLyons.ca/it/crtc.

 

Ogilvy Renault, "Jurisdiction and the Internet: Are Traditional Rules Enough?", Uniform Law Conference of Canada (July 1998),

http://www.law.ualberta.ca/alri/ulc/current/ejurisd.htm 

 

Steven V. Podolsky, “Chasing the Future: Has the Digital Performance in Sound Recordings Act of 1995 Kept Pace with Technological Advances in Musical Performance, or is Copyright Law Lagging Behind?” 21 Hastings Comm/Ent L.J. 651 (Spring 1999).

 

Avi Pollock, “Canadian Copyright and the Internet”, http://www.ampksoft.ca/compoly.htm

 

Benjamin Salango, “Copyright Infringement in Cyberspace: Untangling the Web with Existing Law”, -- W.V. Jolt L. Rev. ---, http://wvjolt.wvu.edu/wvjolt/current/issue1/articles/salang/salango.htm

 

Shahram A Shayesteh, “High-Speed Chase on the Information Superhighway: The Evolution of Criminal Liability for Internet Piracy”, 33 Loy. L.A. L. Rev. 183 (November 1999).

 

Barry Sookman, “Copyright and the Information Superhighway: Some Issues to Think About (Part 1)”, 11 I.P.J. November 1997, pp. 287-294.

 

Corey D. Steinberg, “Copyright Law in the Digital Age: Is This Legal Schema Adaptable to the Era of the Internet?” Cyberlaw & Society (April 30, 1999), http://www.cyberlaws.org/

 

Strategis, "Guide to Copyright", Industry Canada, http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/cp_main-e.html.

 

Strategis, "The Canadian Electronic Commerce Strategy", Industry Canada (1999),

 http://strategis.ic.gc.ca/virtual_hosts/e-com/english/ecom_eng.pdf.

 

George S. Takach, Computer Law (Toronto, ON: Irwin Law, 1998), pp.110-122.

 

Jack Valenti, “If You Can’t Protect What You Own--You Don’t Own Anything: Comments by Jack Valenti, President and C.E.O of the Motion Picture Association of America before the Hearing Subcommittee on Court and Intellectual Property on WIPO Copyright Treaties Implementation Act and the Online Copyright Liability Limitation Act”, (16 Sept. 1997).

 

David Vaver, Intellectual Property Law (Concord, ON: Irwin Law, 1997).

 

Richard E. Wiley, “Developments in Communications Law: Competition, Consolidation and Convergence”, 584 PLI/Pat 153, (1999).