Down Periscope: Further Thoughts on Periscope, Meerkat, and the DMCA

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Shortly after the recent Floyd Mayweather/Manny Pacquiao boxing match, Re/Code published an op-ed that I wrote discussing some of the copyright implications of live video apps like Periscope and Meerkat. In that article I made two points: first, that we should hit pause on a collective panic over Periscope and Meerkat signaling the latest assault on copyrighted video, in part because rightsholders can bring the powerful DMCA notice-and-takedown provisions to bear on the problem, and in part because video streaming live events does not necessarily implicate copyright law.

While the hype around the issue has died down, there are at least two reasons to keep an eye on how things develop in this space. First, although the DMCA strikes a balance between rightsholders and users uploading or streaming content, rightsholders are pushing to implement automatic filtering protections, which do not take into account the rights of the uploader or streamer. Second, while many instances of capturing live events on video are currently beyond the scope of copyright law, the law may be changing in the near future.

To understand how automatic filtering may come to pass, let’s begin with YouTube. When infringing content ends up on the Internet, the DMCA places the burden on rightsholders to identify it and notify the service hosting the content. As a result of its popularity, YouTube became a target of rightsholders. In response to lawsuits, YouTube decided to take on the burden of identifying potential infringement itself in order to placate rightsholders.

We’re already seeing this shift with Periscope. Back in April, an HBO representative complained that “developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications.” And Periscope is signaling that giving rightsholders powers beyond what the DMCA requires is a possibility, with co-founder Kayvon Beykpour “acknowledg[ing] at [TechCrunch] that DMCA [...] requests are not a very effective tool for responding to live copyright infringement because the speed at which the infractions take place is far faster than the requests can be processed.”

It’s worth distinguishing that while much of YouTube’s content is not live, but rather already recorded, Periscope and Meerkat are all about live events. Purveyors of premium video broadcasts, especially of live events, suffer a harm that cannot easily be fixed after the fact. But this distinction goes in both directions - just as the harm of unauthorized streams is hard to fix after the fact, the harm of mistakenly taking down a legitimate live stream is just as irreparable. This is especially concerning in light of two developments that are on the horizon, namely automatic filtering of live streams, and an expansion of copyright-like protections for live performances that currently fall outside the scope of the law.

The concern with automatic filtering is that the technology isn’t accurate (Ben Popper described watching one technology that tries to identify the content of video streams and mistakes musicians for puppies), and is purpose blind. Copyright law grants exclusive rights for only certain uses to the rightsholder - for other uses, like fair uses including criticism or news worthiness or commentary, the user doesn’t need permission. Filtering technology, like YouTube’s ContentID, is unable to distinguish between uses that need authorization and uses that do not. As a result of these limits of filtering technology, it’s worth emphasizing that implementing it privileges the rightsholders’ uses above anyone else’s legitimate use.

The second development in the law that raises concerns is the Beijing Treaty on Audiovisual Performances, to which the United States is a signatory. As I mentioned in Re/Code, copyright typically applies to works that are “fixed,” with one relevant exception: if you record a live (i.e. “unfixed”) performance of music, it’s treated like a copyright violation. The Beijing Treaty may expand the scope of unfixed, public activity you can’t record. While we don’t know how the United States plans on implementing the treaty in the law, it will be important to keep in mind how that might impact live video platforms.

Taken in combination, automatic filtering of live streams and an expansion of the types of activities that users might be forbidden from recording under the law are reasons to be wary about how these promising platforms, made possible by a proliferation of smartphones and high-speed bandwidth unimaginable not too long ago, may be severely limited before we even have a chance to find out what kinds of new and interesting uses they might enable.

 

Image credit: Flickr user Jeff Kubina

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