It looks like an online video distributor (OVD), it feels like an OVD, but is it an OVD?  That is the question that many observers are asking about NimbleTV, a new service that launched this month in the New York area.  NimbleTV is a cloud-based service that allows cable and satellite subscribers to view content on virtually any device, from any location, at any time.

NimbleTV is like Slingbox—only different.  Slingbox attaches to a consumer’s existing consumer premises equipment and allows the consumer to place-shift the content from that device to Internet-connected devices.  With Slingbox, consumers typically can access any content that is part of their subscription package or stored on their DVR.

As we mentioned above, NimbleTV lives in the cloud and does not require any consumer-premises equipment.  Instead, consumers with existing cable or satellite subscriptions can add NimbleTV on top of their existing plan – allowing them to record and watch content from select providers online.  Currently, subscribers to Cablevision, FiOS, Time Warner Cable, and RCN can receive 24 channels through NimbleTV – mostly local broadcast channels.  Alternatively, consumers can purchase an integrated package from NimbleTV that includes both a programming subscription and the NimbleTV service.  This option comes with up to 96 channels, and includes popular cable networks such as CNN, ESPN, Food Network, and MTV, as well as the option to add premium movie and sports networks.  Subscribers must have a physical address in the New York City area to subscribe to the integrated service.

Although NimbleTV has not specified how it obtains broadcast and cable content, it is believed that NimbleTV utilizes Dish Network for its integrated packages.  As for broadcast content, that remains more of a mystery, with NimbleTV only saying that it does not rely on small antennas, a la Aereo and FilmOnX.

So does NimbleTV’s service raise any concerns as to digital rights?

Thus far, no programmer has publicly expressed concerns about NimbleTV’s offering (although Dish Network did distance itself earlier in the year, making clear that NimbleTV is not an authorized Dish reseller).  But NimbleTV has not said whether it has obtained explicit

rights to record and redistribute broadcast and cable programming or whether it is relying on an interpretation of “personal use” that would exempt it from having to obtain such rights.  This distinction could determine whether NimbleTV becomes engaged in lengthy litigation, such as that seen by Aereo, FilmOnX, and Slingbox, or whether programmers and distributors will embrace the service.  Notably, because NimbleTV requires an underlying MVPD subscription, unlike Aereo and FilmOnX, broadcasters that have elected retransmission consent presumably are receiving some compensation for each subscriber.  Still, as Fox has argued (thus far unsuccessfully) in the Dish Network/Slingbox matter, paying for a static subscription is not the same thing as paying for the right to place-shift.  Fox is appealing to the Ninth Circuit Court of Appeals a lower-court decision rejecting that argument.

One of NimbleTV’s most attractive features is its large DVR, which permits recording up to 90 hours of high definition programming.  This combination of a large, cloud-based DVR, accessible from any location, positions NimbleTV as a cross between Slingbox and Cablevision.  Accordingly, it is not surprising that NimbleTV has chosen to debut its service in New York, which is controlled by the favorable Second Circuit precedent in Cartoon Network, LP v. CSC Holdings, Inc. (the Cablevision network DVR case).

It also is possible that NimbleTV’s prospects will turn on business considerations, not legal ones.  Unlike Dish, Aereo, and FilmOnX, which have approached programmers as adversaries, NimbleTV has embraced them, with Tribune Co. as one of NimbleTV’s early backers.

As the battles over digital rights continue, this certainly will be a service to watch—at least until the next service promising to revolutionize online video comes around.

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