By: Scott Hervey
Periscope (owned by Twitter) and Meerkat are two new “live streaming” apps which allow users to live stream videos from their phones. These applications could potentially change the way live sporting or music events are broadcast or change the way news footage is gathered. They can also be used by a viewer to re-broadcast copyrighted content. HBO was recently on the receiving end of that lesson when it found out that dozens of viewers were live streaming the season premiere of Game of Thrones.
HBO said that Periscope was responsive to its take down notices, but also added “We feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notification.” This sounds very similar to the argument Viacom initially made in its protracted copyright infringement litigation against YouTube. However, in 2010 U.S. District Court Judge Louis Stanton rejected this argument when he found that the Digital Millennium Copyright Act (the “DMCA”) insulated YouTube/Google from Viacom’s infringement claims and granted YouTube’s motion for summary judgment.
Under the DMCA, a “Service Provider” may be entitled to immunity from claims of copyright infringement in four areas: 1) transitory communications; 2) system caching; 3) storage of information on systems or networks at direction of users; and 4) information location tools. While each area would appear to have some application to Periscope and Meerkat’s business, the information storage category is of primary focus.
Under the information storage safe harbor, the Service Provider: (i) must not have actual knowledge that the material is infringing; (ii) must not be aware of facts or circumstances from which infringing activity is apparent; and (iii) upon becoming aware of the existence of such infringement material, acts promptly to remove or disable access to the infringing material. In addition, in order to be entitled to copyright infringement immunity under this provision, the Service Provider must not receive a financial benefit directly attributable to the infringing material where it has the right and ability to control it. Additionally, the Service Provider must, upon notification of a claim of infringement, quickly remove or disable access to the infringing material.
Under the DMCA, Periscope and Meerkat cannot refuse or fail to take action when infringement is brought to their attention, but they have no legal obligation to take affirmative steps to screen content or build new technology that prevents the use of their application to infringe the copyright of third parties.
Clearly HBO has the right to pursue the Periscope users that live stream Game of Thrones (or any other HBO program). But what about streaming live events – such as the “Fight of the Century” between Floyd Mayweather and Manny Pacquiao. HBO (and Showtime) paid handsomely for the live broadcast rights to the fight and prior to the fight, were taking aggressive steps to prevent free live streaming. HBO, Showtime and fight promoter Top Rank, Inc. filed suit against two livestream websites, boxinghd.net and sportship.org, claiming that they would livestream the TV broadcast of the fight for free. A Federal District court granted HBO’s injunction.
But what about Periscope users that stream directly from the fight? Apparently numerous Periscope and Meerkat users streamed live from the fight. HBO, Showtime and Top Rank were none too pleased; Top Rank promised legal action. However, if Top Rank follows through with its threat and sues either Periscope or Meerkat, it may face an early TKO. As long as Periscope and Meerkat respond promptly to take down requests, the DMCA will protect them from copyright infringement claims. If Top Rank sued the Periscope or Meerkat users that filmed and streamed the fight from their seats at the arena, it would have to be on grounds other than copyright infringement.