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Up Periscope: Law and Live Video in the Meerkat Era

Could you just livestream the spectacle free from any worries? Probably not.

Mark Damon/Las Vegas News Bureau

This weekend, millions of viewers tuned in to watch pugilists Floyd Mayweather and Manny Pacquiao engage in a boxing match that has been six years in the making. Most of them shelled out between $89 and $100 to watch the fight via pay per view.

Some, though, watched the fight through live video services like Periscope and Meerkat. And as seems to happen with increasing frequency these days, when live sports and new technology mix, copyright issues get top billing. Why does pointing your cellphone at your TV screen implicate copyright? What if you were in the stands and facing the ring rather than in your living room?

Let’s look at copyright law to answer these questions. Copyright protects fixed works of original expression. Typically, we think of movies, books, musical compositions or sound recordings when we think of works of expression. But it doesn’t require a work of genius to qualify for copyright protection — under U.S. law, any amount of creative input, no matter how “crude, humble, or obvious,” is enough. Once the threshold for original expression is met, and the author “fixes” it by writing it down, recording it, sculpting it in clay or what have you, the author has the exclusive right to copy, distribute, adapt and publicly perform or display the work, subject to limitations and exceptions like fair use.

So let’s go to the videotape. A live sporting event is not a fixed work of expression, any more than a game of touch football at the park is. However, when someone points a camera at the action and records it, that particular video is entitled to the protections offered by copyright law. That’s why pointing your cellphone at a TV playing that footage, and livestreaming it over a social media network, is probably going to run afoul of the law. It’s about as good an idea as using your phone to livestream “Game of Thrones.”

What about if you’re at the event and in the stands? Could you just livestream the spectacle free from any worries? Probably not. Take a look at your ticket’s fine print (or just view the advertising at the venue). We’ve left the land of intellectual property and entered the land of real property. When you enter the venue as a ticket holder, you do so subject to conditions imposed by management and the exhibitor. If the event is being televised, there’s a good chance that someone paid for the exclusive right to beam the video out, and they probably don’t want to compete with the guy in Row E with the iPhone 6 Plus. And if the event is a concert, you may actually be violating an anti-bootlegging law.

Speculating about whether Twitter’s Periscope, or its competitor Meerkat, are going to face trouble with media partners, or legal action in the aftermath of the Mayweather-Pacquiao fight, is in vogue.

It’s worth keeping in mind that the law already provides a remedy: The Digital Millennium Copyright Act’s notice-and-takedown provisions. HBO has stated that it sent takedown notices to Periscope identifying streams of “Game of Thrones,” and Twitter says it received 66 notices during this weekend’s boxing match and responded within minutes to each of them.

Dick Costolo/Twitter

Even so, it’s unlikely that Periscope and Meerkat will pose a major threat to live TV in the near future, given that their streams can’t match the quality of a high-definition television broadcast, and are comparatively unreliable (ironically, some amount of livestream traffic was driven by cable providers’ struggles to deliver the fight to pay-per-view subscribers.)

While it’s important to consider the implications of live video services on the distribution of exclusive video content, it’s just as important to avoid the trap of only viewing these services through the narrow lens of copyright. Just as YouTube has flourished as a platform for creative individual expression in ways that couldn’t be imagined in 2005, it’s critical that these new platforms be given breathing room to grow before demanding that they bend to the needs of HBO. There are many uses for livestreaming that don’t implicate anyone’s copyright interests: A stream of your child’s soccer game, your teenager’s high school graduation, a local government hearing, a condo board meeting, a spontaneous political speech, an impromptu street performance and so much more. Even the boxing fight’s promoters integrated Periscope into the build-up to the fight.

So what are the lessons to take away from this story? First, livestreaming apps have many more applications than just restreaming copyrighted works. Our first reaction to every new technological platform shouldn’t be “but what about copyright?” Second, livestreaming an event that you’re witnessing is different from merely pointing your camera at the output of someone else’s camera. You may still get in trouble (e.g., for violating venue rules, or violating someone’s privacy interests), but it won’t necessarily be due to copyright. Third, protecting the value of a copyrighted work doesn’t require expanding copyright law — sometimes other parts of law, like property law and contract law, suffice.

As a practical matter, these live video apps aren’t a threat to live entertainment or the value of high-quality video broadcasts of the event — they’re not a substitute for the live experience or a high-quality broadcast. Even if camera sensors and wireless bandwidth improve enough to allow us to livestream in high definition, we already have the legal tools, such as the DMCA’s notice-and-takedown provisions, in place to handle it.

Raza Panjwani is a policy counsel at Public Knowledge, where he focuses on copyright, telecommunications and other areas of law that regulate modern technology and the Internet. Reach him @panjwaniPK.

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