In the spring of 2015, two new “live-streaming” apps, Periscope and Meerkat, became available to the public. These apps essentially allow users to create their own live broadcasts from their smartphones. Users have streamed live video of newsworthy events but also used the apps in ways that may violate copyright law. The apps have led to numerous “takedown notices” under the Digital Millennium Copyright Act (DMCA), but there have been no lawsuits so far. Controversies surrounding these apps also raise questions about whether an event itself, rather than a recording or broadcast of the event, is subject to copyright protection.
Meerkat was the first of the two apps, launching in February 2015. Periscope followed in March 2015. Two months earlier, in January, the social media service Twitter acquired Periscope from its founders for a reported seven- or eight-figure sum. Both apps have acquired millions of registered users, although Periscope has gained more publicity since its launch. Its direct connection to Twitter is almost certainly a factor in its prominence. Neither company maintains users’ video content on its servers for longer than one day, but other apps allow people to “capture” streams as digital video files.
The first copyright issue to arise in connection with live streaming occurred in April 2015, when the premium cable network HBO began sending DMCA takedown notices to Periscope. Users were allegedly streaming episodes of the HBO show Game of Thrones by holding their phones up to their television screens. Television episodes are undoubtedly copyrighted material, and it seems beyond dispute that streaming an episode online without HBO’s permission constitutes copyright infringement. Other controversial types of streaming, however, do not offer such clear answers.
Under the DMCA’s “safe harbor” provision, 17 U.S.C. § 512, Periscope is shielded from liability under copyright law if it responds quickly to takedown notices from copyright owners. Since it had no copyrighted content stored on its servers to remove–the company deletes video data after 24 hours–it offered to comply with HBO’s DMCA takedown notices by suspending users who stream unauthorized copyrighted content.
Periscope found itself at the center of another controversy in May 2015 during the much-publicized boxing match between Floyd Mayweather and Manny Pacquiao. The fight took place in Las Vegas, and people who were unable to see it in person could watch it via an authorized live pay-per-view broadcast. The fee for watching the fight varied by cable provider, but it was reportedly as high as $100 in some markets.
The producers of the broadcast, which included HBO, filed suit against multiple website operators in advance of the fight to stop them from hosting pirated feeds of the broadcast. See Showtime Networks, et al. v. John Doe 1, et al., No. 2:15-cv-03147, complaint (C.D. Cal., Apr. 28, 2015). They were unable, however, to stop some Periscope users with pay-per-view access from allegedly streaming it.
The broadcast of the fight, much like a Game of Thrones episode, is undoubtedly copyrighted, but this situation raises a question about Periscope users who are watching the fight, or any other sporting event, in person. A live sporting event, unlike a broadcast or recording of that event, might not be subject to copyright protection. See National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); Facebook, Inc. v. ConnectU, LLC, 489 F.Supp.2d 1087, 1092 (N.D. Cal. 2007). In that sort of situation, it may fall on the venue to prevent unauthorized recording or streaming of the event.
If you or your business is involved in a legal dispute, you should consult a knowledgeable intellectual property attorney who can advise you of your legal rights and obligations, and can advocate for your interests. James G. Schwartz has practiced business and commercial law in the San Francisco Bay Area for almost 40 years. Contact us online or at (925) 463-1073 today to schedule an initial confidential consultation.
More Blog Posts:
Digital Music Service Shuts Down as Part of Copyright Lawsuit Settlement, Pleasanton Business & Commercial Law Blog, July 15, 2015
Judge Rules in Favor of eBook Retailer in Copyright Claim Brought by Publishers, Pleasanton Business & Commercial Law Blog, January 30, 2015
Use of a DMCA Takedown Notice to Enforce a Trademark Could Expose California Business to Sanctions, Pleasanton Business & Commercial Law Blog, July 15, 2014