Live Streaming TV Broadcasts: Copyright Law & Periscope Piracy

periscope-pirate-webA few weeks ago, I wrote about apps like Meerkat and Periscope, discussing the potential legal implications of live streaming, from invasion of privacy to copyright infringement and everything in between.

Here we are, roughly a month later, and recent events have shown that the buzz about legal risks was not just media hype: people are using Periscope and Meerkat to live stream entire TV shows and live events. (Media coverage focuses more on Periscope, because Meerkat’s lost some steam.)

Yes, People Live Stream Entire Shows
You might think that a live stream is a poor substitute for watching a program on your own television. But as Periscope activity during the recent Mayweather/Pacquiao fight recently proved, some people will live stream someone else’s TV broadcast, in its entirety, from start to finish (unless they get caught and Periscope kills their feed).

No, Live Streaming Entire Shows is NOT Legal
It’s possible that some people who streamed the fight from their televisions to Periscope or Meerkat believed their conduct was legal. Typically, live, unchoreographed sporting events are not protected by copyright.

However, this applies only to the action taking place in the arena, not the television simulcast.  When broadcasters are sending out a live feed of the event, copyright law protects that as a “simulcast,” so anyone rebroadcasting that video is committing copyright infringement.

During the fight, copyright holders issued takedown notices for 66 different Periscope feeds. The site managed to take down approximately 30 of those while the fight was in progress. As many people reported, however, it was very easy to switch to another stream when one was shut down.

Live Streaming Via Mobile Is Still New…But It’s Catching On
Copyright infringement via live streaming apps like Periscope and Meerkat is a real problem, and this technology isn’t even mainstream yet! After both apps launched in March, each had around 20,000 users. Compare that with Facebook’s 745 million daily active users and it seems highly likely that relatively few people know what Periscope is or what it’s for.

But just wait. Periscope, owned by Twitter, is number 9 in the app store. It’s well ahead of competitor Meerkat (down at number 60), and garnering more downloads every day.

The Challenge for Copyright Holders
Viewers rebroadcasting content by live streaming presents an unpalatable choice for copyright holders. Do you want to spark a PR crisis by suing people who infringe your copyright (as we saw with RIAA lawsuits ten years ago)? Not smart.

Here’s the rub: everyone rebroadcasting the fight on Periscope had paid a hundred dollars to watch it on pay-per-view. In other words, if you want to sue for copyright infringement, you’ll be suing the people who paid in the first place.

The thousands of people around the world who watched the illegal feeds—most of whom would never have paid to watch it anyway—would get away unscathed.

The only people over whom you can exert some control are those who actually attend the fight. You could block their access to Wi-Fi or jam their cell phone signals (except that jamming is illegal).  Even if you chose to do that, however, you could not possibly control the people watching the broadcast in their homes, or at other places outside your control.

As always, it seems technology giveth and taketh away.

The entertainment industry needs to find a different way to monetize this type of content. Provide exclusive content to people who actually buy, so people see added benefit from paying for access. Sell merchandise. Enhance the live experience. But give up on the idea that you can put locks on people who want to get your content for free: you can’t.

I’m not saying companies should permit the piracy to continue unchecked. Meerkat and Periscope, in their terms of service, ban users from posting content that violates others’ copyright, trademark, privacy and publicity rights.

File requests to terminate Periscope and Meerkat feeds that are infringing your copyright as an event is unfolding, just as you would issue takedown notices for YouTube videos posted the day after.

But that is where legal action should end. Don’t sue your customers! That is not a sustainable business model.

A Possible Solution
Technology itself might offer a way to curb the piracy: the Shazam app listens to the environment, detects a song or TV show playing in the background, and identifies it for the user.

Periscope and Meerkat developers could incorporate this technology into their live-streaming apps, and use it to detect streams that potentially infringe copyright law. Their terms of use could be revised to include consent to this type of monitoring while the app is in use.

A warning could pop up alerting the person live streaming to the fact that some copyrighted material has been detected, and that they should move away from it to avoid potential infringement. This would give people who are accidentally streaming protected works the chance to reframe or relocate.

Periscope or Meerkat could terminate the feeds of users who continue broadcasting others’ copyrighted content. It’s an imperfect solution, but it’s a start.

What’s your take? Tech experts, is monitoring like this feasible? Users, would you use a live streaming app that monitored your feed? Tweet me and let me know!

And if you’re interested in having me address the legal aspects of live streaming for your event or group, check out my speaker page, or just drop me a line and we’ll set it up.

/Begin mandatory disclaimer/ This post and any articles linked from this post are not legal advice and are not intended as legal advice. All posts on this site are intended to provide only general, non-specific legal information. This blog does not create any attorney-client relationship, and is not a solicitation. /End mandatory disclaimer/

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