"Up Periscope!" by Joe HF [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0/)], via SketchPort“Live-streaming,” by which a person can transmit a live video feed from their smartphone via various mobile apps, has received a large amount of attention recently. The live-streaming app Meerkat generated considerable buzz at this year’s SXSW Interactive Festival, but the leader of the pack seems to be Periscope, at least in terms of the attention it receives. Twitter acquired Periscope in early 2015—before the app had even launched—for an undisclosed sum rumored to be in the low nine figures.

People have used Periscope to broadcast events as they occur, which can fit in quite well with Twitter’s role in getting news out to the world quickly. On the other hand, live-streaming apps, and Periscope in particular, have come under fire for their role in alleged copyright infringement. Freelancers who work in social media ought to know the limits of what they can do with live-streaming.

Live-Streaming Copyrighted Content

Perhaps the first controversy regarding Periscope came in April 2015, when the cable network HBO claimed that people were using the app to live-stream the season premiere of its popular show Game of Thrones. Essentially, the allegation was that people with HBO subscriptions were holding their phones up to their televisions for the entire one-hour episode in order to stream it to their followers.

"King's Landing" by nikaanuk [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via DeviantArt

It is difficult to dispute that this violates HBO’s copyright to Game of Thrones. In that sense, HBO was on solid legal ground. Existing law, however, does not quite seem applicable to the problem. Under the Digital Millennium Copyright Act (DMCA) of 1998, a company or service like Periscope, Twitter, Facebook, Google, YouTube, etc. is not liable for material posted on their sites or transmitted through their servers by third parties, provided that they take swift action to remove infringing material upon notice by a copyright owner. The method for alerting a website or social media service of infringing material is known as a “takedown notice.”

HBO sent numerous takedown notices to Periscope. The problem is that, according to Periscope, the service does not host video streamed by users for more than twenty-four hours. Meerkat apparently does not store video at all. In other words, there was nothing for these companies to “take down.”

Interrupting Business Models

We have now established that live-streaming a television show like Game of Thrones is an unambiguous copyright infringement, but what about other types of television broadcasts? The second major controversy surrounding Periscope and other live-streaming apps came in May, with the much-publicized boxing match between Floyd Mayweather and Manny Pacquiao. Anyone who couldn’t get tickets to watch the fight in person in Las Vegas had to order the one authorized broadcast through pay-per-view. The cost varied by cable provider, but was as high as $100 in some markets.

Before the fight, the producers of the pay-per-view broadcast took multiple website operators to court after they claimed to have access to pirated feeds of the fight. What they couldn’t prevent ahead of time, however, were live-streamers. Much like with Game of Thrones, live-stream app users allegedly streamed the pay-per-view broadcast of the fight. Cable companies reported lower-than-expected revenues from the pay-per-view event, although it is not clear whether this was solely due to unauthorized live streams.

This is also an unambiguous copyright violation. Broadcasts, like the authorized broadcast of the Mayweather-Pacquiao fight, are considered copyrightable, so exhibiting or displaying the broadcast without permission is unlawful. (I say “unlawful” instead of “illegal” because while it is “against the law,” it is not a criminal offense.)

"Twitter's Periscope App TODAY Show NBC" by Anthony Quintano [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/)], via Flickr

A Question of Liability

The same problem presents itself here as with Game of Thrones—who is liable for copyright infringement? Periscope, with whatever deep pockets it might have, is shielded by the DMCA, and suing individual users has never been a winning strategy in the history of the internet. Copyright owners generally have to rely on the live-streaming services to enforce user agreements, which often say that unauthorized streams of copyrighted materials can result in account suspension.

If a person live-streams an event that they are attending in person, such as an NFL game, copyright law probably does not apply at all. Courts have held that, while a broadcast or recording of a game is subject to copyright protection, the game itself is not. A federal court of appeals held in 1997 that a device manufactured by Motorola, which displayed “real-time” scores in NBA games (this was very much the pre-smartphone era), did not violate any copyright interest of the NBA. Even if copyright law does not apply, however, event venues are probably within their rights to prohibit attendees from using mobile devices for live-streaming purposes.

Technological Limitations

Most live-streaming services do not retain streamed data on their servers, but software is available that allows users to capture live streams and save them as video files. It is likely that live streams of Game of Thrones resulted in pirated copies of the episodes. One major drawback of live streaming, however, is video quality. These apps allow users to almost-instantly transmit video from their smartphones to the wireless network, the internet, and whatever other electronic communications networks are involved here. This does not allow much in the way of video quality. For this reason, live-streaming probably does not pose the same threat as, to name one example, file-sharing services.

Other Legal Concerns

Aside from potential copyright violations, live-streaming presents potential legal headaches based on the right of publicity. People generally do not have a reasonable expectation of privacy when they are walking down the street, or are otherwise out in public. At a private event, however, that is not the case. If you are live-streaming an event, you need to notify people that they may be appearing on live video on the internet, and obtain a release.

Coming soon: More exciting copyright stuff, anti-SLAPP laws and defamation, some thoughts on patent and trademark law, and more vague promises to write about software…

Photo credits: “Up Periscope!” by Joe HF [CC BY-SA 4.0], via SketchPort; “King’s Landing” by nikaanuk [CC BY-SA 3.0], via DeviantArt; “Twitter’s Periscope App TODAY Show NBC” by Anthony Quintano [CC BY 2.0], via Flickr.