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Time Warner Cable and Viacom Take iPad Dispute To Court

in Copyright/Intellectual Property by

Time Warner Cable’s dispute with Viacom over the question of whether the cable company is allowed to stream certain television channels onto its customers’ iPads within the confines of their own homes spilled into court Thursday when both sides asked the court to enforce their interpretations of their business contracts.

Time Warner Cable’s free iPad app, which allows its existing customers to access some of their channels through the iPad within the confines of their homes, launched March 15 with 32 channels.

Viacom says that its executives discovered Time Warner Cable’s plans to launch its iPad app shortly before the March 15 launch date. Its executives told Time Warner Cable that its contracts didn’t allow for the streaming of Viacom’s channels, but that the cable company went ahead and included the channels anyway.

Since its launch, the app has been downloaded 360,000 times.

“We have steadfastly maintained that we have the rights to allow our customers to view this programming in their homes, over our cable systems, without artificial limits on the screens they can use to do so, and we are asking the court to confirm our view,” Marc Lawrence-Apfelbaum, Time Warner Cable’s executive vice president and general counsel said in a statement to the press Thursday.

Time Warner Cable filed a motion for declaratory relief with federal district court for the Southern District of New York Thursday, saying that its contracts with Viacom channels never specified anything about the kinds of devices that the programming could be streamed to within customers’ homes, that the streams to the iPads deploy the same transmission technology as is used for television programming, and that at no time is the programming ever transmitted over the public internet.

The cable company says in its court filing that the iPad is no different from its Broadband TV pilot project between 2005 and 2007 in San Diego, to which Viacom ultimately had no objections to when the technology was explained to its executives.

The company wants a declaratory judgement from the court because it plans on introducing several other kinds of devices to which its cable system can pipe its content, and it wants to remove the prospect of being hit up for more carriage fees, the filing says.

For its part, Viacom is suing Time Warner Cable for breach of contract and trademark infringement.

Viacom points to Time Warner’s use of the internet protocol as a method of transmission, and says that it doesn’t fall under traditional legal definitions of a cable service, and that Time Warner never obtained the rights to “deliver Viacom’s programming via broadband.”

Delivering the content via broadband on iPads will undermine audience measurement firm Nielsen Media Research’s ability to accurately rate television shows for advertisers, it says. That’s a problem because advertising is the main revenue source for the channels.

And Time Warner’s move will undercut Viacom’s other business relationships, say the firm’s lawyers.

“Among other things, TWC’s actions will interfere with Viacom’s opportunities to license content to third party broadband providers and to successfully distribute programming on its own broadband delivery sites,” reads Viacom’s complaint.

“Examples of authorized broadband distribution of Viacom’s entertainment programming include Apple’s iTunes Music Store, which sells secure digital downloads of television shows from several of Viacom’s television networks and streaming services such as Hulu and Netflix,” Viacom told the court in its Thursday filing. “The programming distributed through these licensed online broadband distribution channels include ‘The Daily Show with Jon Stewart,’ ‘The Colbert Report,’ and ‘South Park’ from Comedy Central; ‘Spongebob Squarepants,’ and ‘Dora the Explorer’, among others, from Nickelodeon; and ‘Beavis and Butthead’ and ‘Laguna Beach,’ among others, from MTV.”

Viacom says that the disagreement is primarily about Time Warner Cable’s unilateral actions.

“Viacom is committed to meeting consumer demand for wireless and broadband delivery of its programming,” the company says in its filing with the court. “To this end, Viacom has reached reasonable agreements with several emerging and established digital platforms so that they can stream Viacom’s content and also provide an outstanding user experience.

Viacom has made clear that it is willing to discuss extension of similar rights to others– including TWC. What Viacom cannot do, however, is permit one of its contracting partners, TWC, to unilaterally change the terms of its contractual relationship.”

Of course what is interesting is that interactive tablet devices such as the iPad and SmartTVs were not available back in 2005, 2006 and 2007.

Viacom probably didn’t have the option of streaming its content directly to consumers via broadband networks through tablet interfaces such as Apple’s iOS: So the contract agreed to at the time in San Diego, and that Time Warner Cable points to as an example of Viacom being kosher  with, may not be a good point of comparison because the technology was different at the time.

At that time, the iPad did not  exist, and Viacom did not have the option of building its channels’ brands independently of Time Warner on the Apple iOS platform.


Report: Content Providers Sending Nastygrams to Time Warner Cable To Stop iPad Streaming

in Copyright/Intellectual Property/Media/Media ownership by

Time Warner Cable is receiving cease-and-desist letters for allowing its customers to access television programming through their iPads, according to the online business, tech and finance site Business Insider.

The publication credits an anonymous industry source for the information.

Time Warner Cable’s free iPad app, which allows its existing customers to access some of their channels through the iPad within the confines of their homes, launched last Tuesday with 32 channels.

The app was so popular that it became the most downloaded program on iTunes on its launch day, March 15. But the popularity also caused the system to crash, which reduced the channel line-up to 15.

That’s the reason Time Warner gave for removing some of the channels. The company says that it plans to restore the missing channels and add more as quickly as possible.

At least one content owner has objected to Time Warner’s move.

Scripps Networks Interactive released a statement last week that said that it “has not granted iPad video streaming rights to any distributor and is actively addressing any misunderstandings on this issue.”

Trade industry publication Ad Age quotes a Time Warner Cable spokesman saying that the company believes it has the rights to move forward with the application.

Channel line-ups are negotiated between networks, content owners and cable companies, so it appears to be a disagreement between the two sides as to what existing contracts allow.

As CNET notes, Comcast offers its customers the free Xfinity TV iPad app, and other companies offer similar programs.

And Sling Media offers an app that allows access to programming from anywhere on iPads.

Perhaps the problem is that the programmers have their own iPad plans, and “surprises” from their cable partners might impact their own offerings on tablets.

Scripps, for example, already offers “Home and Garden TV to Go” as a downloadable app on iTunes.

It’s the kind of media industry rights dispute worth keeping tabs on since the lines that distinguish “streaming” on computers versus access through television seem destined to become ever fuzzier as cloud computing grows in popularity.

Metrics Workshop: Measuring Current Network Versus Internet Users' Needs

in FCC Workshops/National Broadband Plan by

WASHINGTON, September 2, 2009 – The Federal Communication Commission’s Wednesday workshop on how to best benchmark broadband for evaluating the various dimensions of broadband across geographic areas highlighted the difference between measuring the current network versus focusing on internet users’ needs.

Richard Clarke, assistant vice president of public policy at AT&T, said that the FCC should benchmark broadband very broadly. This would allow the agency to cope with different classes of user necessity and service differentiation across user capabilities and time of day.

Clarke also argued that the FCC must establish benchmarks that do not vary over time.

Taking a different point of view was Harold Feld, legal director of Public Knowledge and Catherine Sandoval, Assistant Professor of Law, Santa Clara University. Feld and Sandoral said that the focus of benchmarks should be upon the American citizens’ right to use broadband – and should not be limited by usage availability or cost.

They also said that FCC benchmarks must somewhat be adaptive to the changing needs of consumers, and will inevitably change over time.

Where Clarke said that broadband should be tailored to different service levels depending upon the needs of different types of consumers, Feld, Sandoral and Scott Berendt said that it will take superior levels of broadband – beyond that what is currently used in low-usage areas – for internet usage in rural and low-income areas to progress. Berendt is director of research, evaluation of documentation for the non-profit group One Economy.

The three argued that broadband must be benchmarked by types of technology, and by gaps of service, as well as by speed and by ZIP code-based locations of service.

In particular, Sandoral’s presentation urged the FCC to not only focus on the traditional metrics like speed, but also on internet service providers restrictions on downloading applications, application use, computer tethering, device attachment and congestion policies and practices.

She also urged interpretation of the different types of broadband available when accounting for where improvements in broadband service are necessary.

Sandoral gave examples of how the types of broadband available exist due to “application restrictions, bandwidth limits, usage policies, slowdown policies, device attachment prohibitions, peak, average and slowdown speeds.”

Among the issues discussed during the question and answer session included the most meaningful way to measure the price of broadband, why “average use” broadband speeds are so low, and how to most effectively collect data about where and broadband is actually being used.

On the question of how to collect insightful broadband data, Jon Peha, the Chief Techonlogy Officer of the FCC, asked how we make sure the data that is collected about broadband is not “slanted” towards a certain direction.

In response, Santa Clara University Computer Science Director Jon Eisenberg said that there are several ways to collect data, even including how Apple tracks iTunes download performance. Feld jumped in to mention that many independent companies already track broadband usage data for profit.

A questioner from the audience asked whether it might be possible to collect information about broadband access in the 2010 Census. Most of the workshop participants liked this idea. But Sandoval and Feld said that these questions must be addressed in strategic ways for those that have little knowledge about how broadband access works and is defined.

Ironically, the participants in the workshop themselves did not have definitive answer to that definition.

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