Streaming in the Modern Age of Technology

On Demand streaming services provide traditional copyright owners, such as broadcasters, the possibility of offering targeted content to an increasingly broad audience.  However, at the same time, such copyright owners are under threat of copyright infringement.  Since these services have been offered, there have been a broad and growing range of copyright infringements with unlawful streaming of copyright-protected materials and works.  These copyright infringements are so numerous and often conducted by private individuals, that it is difficult for copyright owners to pursue protection of their copyrights unless they can file infringement lawsuits against streaming website owners and providers.  Even in such cases, the high costs of monitoring and litigation make maintaining their copyrights’ protection difficult.

An important aspect of streaming this year involves live streaming apps, such as Periscope or Meerkat, which offer live videos that display what the phone owner is filming through the app.  The world continues to shrink and people can more easily interact with each other, from Tokyo to San Francisco and Sidney to New York.  However, a problem has arisen from the display of copyrighted material through the app that facilitates copyright infringements.  Such infringements can occur from live streaming of protected movies or TV-shows, a special sports event that is displayed solely on Pay-Per-View or from a live sporting event.  This is especially true of sporting events (for instance the Mayweather v. Pacquiao boxing fight on Pay-Per-View), which decrease in value right after they have ended. Fast and steady protection may avoid this problem.

The issue of live streaming infringements is still in its beginning stage and is perhaps less economically critical than the other copyright infringements that have occurred during the past many years.  However, it is a new problem that copyright owners need to be aware of and must actively try to prevent in the same way that UFC’s parent company, Zuffa, actively has pursued protection of their copyrights in recent years.

Periscope’s reaction  to unlawful streaming through their app may be connected to its parent company Twitter’s important relationships with broadcasting companies.  They have a team ready to respond promptly to takedown requests and notices (as required by the DMCA). In its recent Transparency Report, Twitter disclosed that there were 1,391 copyright takedown notices and requests from April 1 to June 30, 2015, out of which 71% were removed.  The supplying media and platform is thus trying to take down the copyright infringements. However, unless users are banned from using the apps, this does not stop them from continuing to provide illegal streams.

Nevertheless, it remains a question if and by whom there is a copyright infringement. Uncertainty arises regarding sports matches that are per se not copyrightable and only protected when broadcasted.  Does the streaming on the app constitute broadcasting?  There does not seem to be a clear answer to such a question.  Another issue is whether not only the user conducting the live streaming is responsible, but also whether Periscope and similar providers are committing any contributory infringements.  All of these questions are still uncertain and may very well depend on the policies and actions taken by the providers (e.g. notice and take down procedure) as well as the providers’ general knowledge.  In light of the 9th Circuit Court of Appeals ruling of Lenz v. Universal, live streaming shall be assessed under fair use standards. On the basis of the ruling, copyright owners must consider fair use before issuing take down notices.  This will also impact the obtainable protection.

In a broader context, the recent development stresses significant issues that arise regarding copyright infringements and streaming.  The question remains whether such will ever be dealt with in its entirety as streaming technology continuously develops at a high speed.  One way this problem may be solved or limited is the existing lawful streaming provided by broadcasters. These legal services may potentially diminish the range of occurring infringements. Although a lack of knowledge of the law is no excuse for infringements, more public information on copyright and infringements might also contribute to a decrease of ongoing infringements.

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