Ever since Meerkat and Periscope popped up on the scene, live event producers and rights owners have worried about the potential for piracy from mobile live-streaming apps. In fact, Periscope more or less made its bones, with the public at least, during the Floyd Mayweather/Manny Pacquaio title fight last year, when the Twitter-owned app led to so much re-broadcasting of the HBO and Showtime feeds of the bout that then-Twitter CEO Dick Costolo, rather indiscreetly, declared Periscope the real “winner” of the night.
Since then, the threat has only grown greater as live-streaming apps have proliferated.
“We saw a lot of new live-streaming apps at CES that are just around the corner,” Clint Cox, VP of technical operations at the Ultimate Fighting Championship said at the Copyright & Technology conference sponsored by GiantSteps Media and the Copyright Society in New York this week. “It’s fairly common technology and it’s becoming a unique challenge for rights owners. It’s a very easy place to put infringing content quickly.”
The problem is doubly complicated by the fact that not all unauthorized streaming of live events is clearly infringing from a copyright perspective, particularly when it comes to live sports. While a licensed broadcaster’s pictures, descriptions and accounts of a sporting event are clearly copyrighted, the game itself — the action on the field, court, ice or ring, as it unfolds in real-time — is not.
Someone sitting in the stands pointing a Periscope-enabled smartphone at the field, therefore, may be violating the venue’s terms and conditions printed on the back of the ticket, but they may not be infringing anyone’s copyright.
“With live streaming of the game itself from inside the stadium, there’s a question of whether there’s a copyright there,” admitted Michael Potenza, VP and IP Counsel for the National Basketball Association. Some might even argue the fan is creating his own, copyrightable broadcast of the event, he noted.
Given the uncertainty, the notice-and-takedown provisions of the DMCA do not provide an effective legal means to knock such broadcasts off the air. And any systematic effort to enforce ticket-back restrictions on photography in venues would require the cooperation of the venues and persuading them to toss out paying customers who are not disturbing other fans.
“Live streaming is an enforcement challenge that we don’t really have a solution for yet,” Potenza acknowledged.
Most unauthorized streams of live events, however, do not originate from the stands. Instead, they originate from legitimate broadcast streams ripped from hacked set-top boxes or from smartphone cameras pointed directly at a TV screen. While the poor quality of such “screen rips” may act as a deterrent for most users today, the spread of 4K cameras and 4K, HDR-enabled TVs means that firewall won’t hold forever.
The problem will only get worse, moreover, as cord-cutting creates demand for content that is still only legally available as part of the pay-TV bundle, warned Rajan Samtani, a consultant working for Korea-based provider of watermarking technology MarkAny
Since the broadcasts are copyrighted, stream-rips and screen-rips are clearly infringing and subject to notice-and-takedown under the DMCA. As HBO and Showtime discovered during the Mayweather-Pacquaio fight, however, that process can quickly turn into a game of Whac-a-Mole as new streams pop up for every one taken down and users simply surfed from stream to stream as necessary.
The delay involved in sending a takedown notice and then getting a response, moreover, especially when streams appear on platforms that have not agreed with rights owners in advance to be on alert for takedown requests, means the damage is already done by the time an infringing stream goes dark.
Technology is becoming available, however, that might allow for a more rapid response. According to Samtani, MarkAny is working on technology to insert watermarks into 4K and live pay-TV content as it exits a set-top box that identifies the specific box it came from. If content a stream containing such a watermark is found online MarkAny’s system would allow the pay-TV provider to turn off the stream to the offending set-top box in real time.
MarkAny is currently testing the technology with several professional soccer leagues in Europe, where unauthorized rebroadcasts are a major problem.
NeuLion, which handles OTT streaming chores for UFC, the NBA and numerous other leagues also has the ability to make unauthorized streams go dark in real time, according to co-founder and EVP Chris Wagner.
“We add serial IDs to individual streams because we handle the provisioning of the streams for our clients as they go out to users,” Wagner said. “So if that stream is rebroadcast we can tell where it came from and we have the ability to turn off the [originating] stream in real time.”
Whether NeuLion uses its kill switch, however, is up to the rights owner, Wagner said, highlighting an issue that up to now has limited the use of such technology: Service providers have traditionally been reluctant to act as enforcement agents against their own customers on behalf of rights owners. Even had such technology been available before now, persuading service providers to cooperate in a real-time takedown system by turning off subscribers’ set-top boxes without warning or prior notice would have been extremely difficult.
According to Samtani, however, those views are starting to change in the face of cord-cutting.
Operators “are starting to realize they are losing customers and revenue from infringing STBs because live sports is one of the few things holding the pay-TV bundle together,” Samtani said. “So you have more of a confluence of interests now than you had before.”
Given the deeply co-dependent relationship between sports and television a lot is riding on that confluence of interests turning into effective action.