Livestreaming and Copyright Issues

Filed as Guides on August 24, 2009 7:51 pm

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Livestreaming is rapidly becoming a powerful force in blogging. Not only is it a fast way to add interactive media to a site, but it’s also a powerful way to record static media, including videos and podcasts, for later.

However, with this new technology comes a new set of legal challenges, one of the biggest being copyright. Not only do rightsholders face the new challenge of content, including audio, TV shows and sporting events being streamed out live, but the companies behind these new technologies face an uncertain legal future, where laws designed for traditional hosts may or may not apply.

This conflict has lead Justin.TV to partner with content matching service Vobile to filter out infringing material, both in their archives and eventually in their live streams. It also has lead to Ustream being sued by a boxing promoter for allegedly allowing over 2,000 viewers to watch a Pay-Per-View fight for free.

In many ways this legal climate is similar to the one YouTube faced during its early days (and continues to face with its billion-dollar lawsuit vs. Viacom) but it can have serious implications for users of livestreaming services. Many of the protections afforded users under the law of most hosts don’t easily apply to livestreaming services and that could create problems down the road.

User Protections

Though the notice-and-takedown system provided under the Digital Millennium Copyright Act (DMCA) is often the subject of bad press, as it was recently with the Obama image takedown on Flickr, it actually provides a great deal of protection to users as well as copyright holders.

The provisions require hosts, such as YouTube and Flickr, to remove or disable access to infringing material should they receive proper notice. Otherwise they may become liable for the infringement. However, it also gives users a means to restore works wrongly taken down via a counter-notice system and the power to sue for damages if the notice was knowingly false. This both discourages the filing of false DMCA notices and minimizes their impact.

However, with livestreaming, it’s unclear how these protections would work, in particular the counter-notice protection. If a livestreamer is accused of infringing copyright infringement and the stream is disabled, there is no work to restore, nothing to put back. The damage is done and it is permanent.

Though the livestream user may still sue, given that many of these takedowns will likely be happening through content ID systems, and not via formal DMCA notices, that protection may not apply either. Instead of the takedown being governed by the DMCA with its protections, it may instead be governed by the site’s terms of service.

Livestream Web sites, on the other hand, have good reason to to try and strictly enforce copyright on their services. Not only do they likely wish to form partnerships with big content produces, and strong enforcement is seen as a way to appease them, but the DMCA was written and passed in 1998, long before livestreaming was a reality and it remains to be tested if these sites even qualify for protection under it and, if so, under what terms.

For example, the law requires hosts to “expeditiously” disable access to infringing material, but that word could take on a very different meaning with a site that is live.

But it is users of these services that have the most to lose. Separated from their normal protections, which even YouTube offers when dealing with matches in their content ID system, its easy to see how they could be victimized by accidental or malicious copyright claims without any recourse.

Avoiding Problems

If you’re a livestream user, the best protection against these issues is to not put yourself in the crossfire and don’t make yourself a test case. Be wary of using copyrighted works, audio and video, in your livestream and remember, just as with YouTube, even a fair use could get caught in the content ID system but, unlike YouTube, you can’t just have the video put back later.

Focus on your own content, use music and works that are licensed for your use, such as appropriately-licensed Creative Commons works. If you keep all of the content in your stream of your own origin or correctly licensed, odds are you wont attract unwanted attention. However, this may mean paying greater attention to what you have playing in the background, either on television or your stereo.

With livestreaming, a little bit of forethought and preparation can save you a great deal of headaches down the road.

Bottom Line

In the end, livestreaming is another example of technology outpacing the law. This is not only a problem in copyright, but nearly all laws that intersect with the Web in any capacity.

Waiting for the law to catch up to technology may be a futile act. In the time it would take to write, negotiate and pass new legislation, let alone on a global scale, two more new iterations would be out, making the new law obsolete even before it takes effect.

These are the legal challenges on the Web and they are not going to get any easier any time in the near future.

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  1. By Hanrian posted on December 20, 2010 at 1:27 am
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    Aw, this was a really great post. In theory I’d like to write like this also – taking time and real effort to make a good article…

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