Fighting Piracy in Real Time

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.

iphone_TV“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. Read More »

Fahrenheit 512

The Friday night document dump is a tried and true tactic used by businesses as well as government officials looking to avoid a conflagration over the content of the documents. Waiting until a Friday that happens to fall on New Year’s Eve, however, has a panache all its own.

That’s when the U.S. Copyright Office dropped a Notice of Inquiry (NOI) into the Federal Register seeking comments on whether section 512 of the Digital Millennium Copyright Act, dealing with the procedures for notice and takedown of infringing material, is working effectively and as Congress intended when it passed the law back in 1996. But if the Copyright Office was hoping that few would notice the NOI, or that it might be able to keep the comments down to a dull roar it will almost surely be disappointed.

Library-of-Congress-Reading-RoomNo one who actually has to follow or apply the Section 512 procedures thinks they’re working well or effectively. Google alone was processing nearly 20 million takedown requests per week at the end 2015, while copyright owners see the system as a hopeless game of Whac-a-Mole, in which files get removed only to reappear quickly under a different URL. Litigation between copyright owners and online service providers — over the scope of the Section 512 safe harbor, which shields service providers from liability for infringing content posted by users if they follow the proscribed takedown procedures, the legal standard for culpable knowledge of infringing activity, and the efficacy of enforcement against repeat infringers — has formed a near-constant backdrop to the law almost since it took effect in 1998, most epically in the seven-year legal battle between Viacom and Google over content posted to YouTube. Many have been waiting years to get a crack at rewriting the safe harbor rules and they’re not likely to let the opportunity pass. Read More »

The Daily Show With Jon Stewart’s legacy

In addition to their many other accomplishments, it’s hard to overstate the impact that Jon Stewart and Stephen Colbert have had on the evolution of the TV business over the past decade. As Stewart now follows Colbert from his late-night, Comedy Central post they leave a transformed industry in their wakes.

jon-stewart-leaving-the-daily-showStewart and Colbert didn’t invent irony on television, or even in fake news — Chevy Chase’s Weekend Update segments on Saturday Night Live helped get that ball rolling 40 years ago — but their incisive, if mocking nightly meta-critique of how “truthiness” in news is manufactured, packaged and sold today left mainstream news organizations all looking self-consciously over their shoulders. At the same time, they helped create an entirely new paradigm for how a generation of viewers watched and understood the news. Read More »

Slippery SOPA

Copyright Critics of the failed Stop Online Piracy Act and the Protect IP Act (SOPA/PIPA) have been having some fun with some internal RIAA and IFPI materials regarding the music industry’s anti-piracy efforts that leaked to TorrentFreak last week. Part of the cache includes a PowerPoint presentation delivered by RIAA deputy general counsel Victoria Sheckler to IFPI members back in April (pdf).

The critics are taking particular delight in Sheckler’s acknowledgment that the laws were “not likely to have been effective tool[s] for music.” Here’s the PPT slide summarizing the SOPA/PIPA debate:

While perhaps a bit embarrassing for the RIAA, I don’t find the revelation terribly surprising. The bills weren’t really crafted with music in mind; most of the online piracy the music industry is concerned about occurs over peer-to-peer networks, which were not the targets of the bills.

Rather, the bills were crafted by the MPAA, as a tool against movie piracy. Though P2P networks are responsible for a certain amount of movie piracy, more of it these days involves digital locker services, mostly based outside the U.S., like Megaupload, which were the main targets of SOPA and PIPA. As data contained elsewhere in Sheckler’s presentation show, digital lockers make up only about 6 percent of what the music companies regard as piracy, compared to 23 percent Read More »

YouTube Court: Viacom Dios

The lesson for content owners from yesterday’s smackdown of Viacom by U.S. District Court Judge Louis Stanton in its lawsuit against YouTube/Google should be clear (which, of course, is no guarantee it will be): stop bringing DMCA  safe-harbor suits against online service providers. It’s not working, and it’s past time to get on with plan B.

The Viacom case can now be added to a string of cases –beginning with Perfect 10 v. CCBill in 2007 and including Io Group v. Veoh (2008), and UMG v. Veoh (2009) — in which courts have refused to impose liability or additional procedural requirements on service providers beyond the strict language of the § 512 (c) safe-harbor provisions. Though The Media Wonk is not a lawyer, it sure seems like there’s a pattern developing here, and it’s not a favorable one for the content industries.

Unlike Grokster and LimeWire, which, as Judge Stanton noted in yesterday’s opinion, involved peer-to-peer file-sharing networks that are nowhere addressed in the DMCA, Veoh and YouTube are precisely the sort of web hosting services Congress envisioned and intended to protect from liability in drafting the DMCA, as Stanton also noted. He went to great length, in fact,  to emphasize the point, giving over whole pages in his opinion to long excerpts from the 1998 House and Senate committee reports on the law detailing exactly how Congress intended the language in § 512 of the statute to be construed by courts. The only real question was whether the standard industry practices YouTube followed regarding notice-and-takedown and the handling of repeat infringers meet the procedural requirements spelled out in the statute to qualify for safe-harbor protection. Like the Veoh courts before him, Stanton said they do.

Not surprisingly, Viacom didn’t see it that way. In a statement issued after the decision was handed down it seemed to suggest that it has YouTube just where it wants ’em:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions.   We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.  After years of delay, this decision gives us the opportunity to have the Appellate Court address these critical issues on an accelerated basis. We look forward to the next stage of the process.

The best case scenario for Viacom would obviously be a win in the Second Circuit, which carries a lot of weight in judicial circles on copyright matters. That might create enough of a split with the Ninth Circuit, which handed down the Perfect 10 case and where both Veoh courts are located, to tempt the Supreme Court to take up the issue at some point and give content owners a favorable ruling.

I can’t speak definitively to the legal likelihood of that scenario actually playing out. But again, to a layperson it seems like a long shot. Four courts have now pointedly refused to impose liability or new procedural requirements on service providers beyond the strict language in the statute, and zero courts have agreed to.

It’s possible, of course, that things could go differently in the Second Circuit, and the court (or the Supreme Court) will create a new legal standard in which a general awareness that unfettered copyright infringement is occurring on a platform is sufficient to disqualify a service provider from the § 512 safe harbor.

My question is: how much would that actually help Viacom? What sort of remedy, apart from monetary damages, would the court impose? It’s not going to erase the safe harbor language from the statute, so the principle of limited liability for service providers would remain. The best case for Viacom would be if the court were to create some new procedural requirements for service providers to qualify for the safe harbor, such as mandatory filtering. That would give Viacom and other content owners far more leverage in negotiating with service providers over the use of their content.

Since filtering is nowhere mentioned in the statute, however, that seems like a heavy lift for the court. If content owners really want mandatory filtering, I think they’re going to have to go to Congress.

That would mean reopening the DMCA, however, which means opening a gigantic can of worms from which all sorts of unpredictable outcomes could crawl. In the meantime, deals with YouTube and other online service providers that could profit Viacom, however imperfectly, are not getting cut.

It’s possible that, some day, Viacom will get a better deal out of the courts, if not from the YouTube case than from some other. But hoping for a three-way bank-shot is not much of a business plan.