An intellectual property attorney and video streaming executive discuss the possible outcomes of this new form of media infringement.
For weeks now, news organizations around the world have focused on how smartphone owners are using live-streaming apps Periscope and Meerkat to illegally broadcast video content, like Game of Thrones episodes and live sports programming.
While users find the platforms useful because it allows them to instantly broadcast live events, the ability to circumvent content laws—with few, if any, consequences—has created liability issues in the media industry.
Under the Digital Millennium Copyright Act, Periscope and Meerkat must to respond to requests, and remove any illegal content. It’s a similar method YouTube previously used to remove music videos or movie trailers from unofficial channels.
Despite both companies’ efforts, some question whether their methods are enough to dissuade users from capturing and sharing copyrighted content.
“In order to be liable for any type of infringement, you have to be playing an active role, encouraging people to check out [the fight] on Periscope, not merely providing a platform,” says Lindy Herman, senior associate at intellectual property firm Fish & Tsang LLP. “These companies know the DMCA inside and out, how to stay in that ‘safe harbor,’ wherein the platform takes a neutral stance and is protected from allegations of infringement, if they have certain policies in place to address when people are posting infringing things.”
During the Mayweather-Pacquiao boxing match, there were approximately 60 illegal streams on Periscope and only half were removed upon request. “I have to wonder how quickly they’re able to do this. Right now, there’s a human on the other end receiving these takedowns in the middle of a livestream. If something is live streaming and I say, ‘take it down,’ what’s a reasonable amount of time? Is it 10 minutes? Is it an hour? Is it when the live event is over?” asks Herman.
“YouTube had this issue for a while. They were reacting quickly, but it got to a point where there were so many notices that it took weeks to get something down,” she says. “They implemented a program where they automatically screened uploads for infringing material. Unfortunately, a lot of legitimate things got stuck in that mess, but it was the technological advance they implemented to address the high volume of takedown notices they were getting. Ultimately, Periscope and Meerkat are going to need that.”
For the time being, Periscope and Meerkat can claim they’re not fostering any piracy, while still benefiting from it. In a moment of possibly misguided pride, Dick Costolo, CEO of Periscope parent company Twitter, tweeted, “And the winner is… @periscopeco,” following the fight, ostensibly a boast about how the tech was used to stream the $100 pay-per-view offering.
Until they’re labeled as enablers by the press or rights holders, or figure out that they’re spending too much time dealing with takedown requests, there’s little need for Periscope or Meerkat to spend money on piracy-blocking technology. Although, Periscope swears that they’re working on something: “That’s a process we’re looking to improve with technology, but there’s a lot of technical complexity in doing that,” CEO Kayvon Beykpour recently told Reuters.
But, it’s not all bad news for rights holders, say experts, who claim companies are finding ways to fight back against piracy. “From a technological standpoint, we can analyze every pixel of every frame that we’re processing and apply a forensic watermark,” says Matt Smith, chief evangelist at Anvato, which provides live-linear and on-demand streaming for NBC Universal, Fox Sports, and more. “If I was use to Periscope and point it at my TV and stream that, we could detect that watermark being illegally processed and notify Periscope to take it down via the DMCA.”
If live streaming problems become widespread, like music downloading did with Napster, cable companies or film studios could start demanding IP addresses and make examples out of illicit broadcasters, possibly even the viewers, via lawsuits. “It’s going to depend on the company, whether or not it’s going to embrace the technology and figure out ways to use it to their advantage or fight it, fight it, fight it,” Herman says.
Smith, who also worked with Mark Cuban’s Broadcast.com and Yahoo!, agrees and is optimistic this current problem could turn into a good thing. “My question is, could there be a revenue opportunity here and not just a piracy problem?” His niece recently told him that if someone offered up a one-off livestream of a TV show she liked, she’d probably spend a dollar to watch it. “Obviously, you have to do it professionally. You provide a feed to Periscope or Meerkat, and they put together a platform where there’s a very frictionless payment platforms, like Venmo where it’s really quick and simple. At scale, I think it presents an interesting commercial model.”
In a sense, Smith says Meerkat and Periscope are similar to how Spotify, and other music services, are offering up legal, more portable alternatives to what Napster had over 15 years ago.
“It reminds me of the argument in the music business that if you offer an easy, frictionless way for people to buy this content or to consume the content, they will, and it will thwart piracy,” he says. “If you provide the right way to do it, people will pay for that content, because there’s value in it. But, if you put barriers up and throw paperwork in the form of lawsuits at them, it doesn’t necessarily fix the problem.”
Both Herman and Smith have noted that several large companies are averse to live streams despite the benefits it could provide. For example, the NFL and NHL have banned live streaming, and the PGA revoked reporter Stephanie Wei’s season media pass because she filmed a golfer during a practice round. “It gives people more content to watch,” Smith says. “The commercial aspect of it is one angle, the behind-the-scenes and backstage access is another, but you’re already seeing the sports leagues saying, ‘Not on my watch.’
If the media industry is to combat illegal content streaming it will have to find new (read: easily accessible) ways to deliver what consumers want, adds Smith. “We as technologists, business people, thought leaders and entertainment folks, we’ve got to think of ways to make content easier to consume, because the viewing choices are expanding exponentially,” he says. “[We’ve] got to figure out smart ways for people to consume content and not put up barriers and say ‘you can’t do that.'”