It's no secret that tons of people are pretty damn upset
with NBC's decisions to tape delay pretty much everything at the Olympics, in an era when everyone is used to real-time info. On top of that, most people recognize that it's not hard to simply go online to unauthorized sources to watch streams of the Olympics live. GigaOm's NewTeeVee put up a post over the weekend that explains how to view such unauthorized streams
, and the site even titled the post: "Pirating the 2010 Winter Olympics." Given that this is all rather obvious, it shouldn't be a problem, right?
But, thanks to some screwed up court decisions that have forced secondary liability
into copyright law, using an "inducement" standard, it's not hard to see how NBC could make a case against GigaOm for "inducing infringement," and therefore being liable for copyright infringement, potentially leading to a complete shutdown. Now, I hope
that NBC Universal is smart enough not to take on this sort of fight, because it would backfire massively -- but, then again, we're talking about a company whose chief lawyer, Rick Cotton, is proud of how difficult
NBC makes it to watch the Olympics, and believes that stomping out "piracy" is the key to saving the American farm
So would NBC have a case? Well, compare what's written in the NewTeeVee article -- which (even with some disclaimers) explains exactly how to get unauthorized Olympics streams with the decision against Gary Fung
in the IsoHunt case. In that case, the judge found inducement by Fung for statements that seemed a lot more innocuous than anything in the NTV article.
Now, GigaOm might have a fair use defense, in claiming that it's reporting, but a judge might challenge that, given the nature of the post itself -- and, certainly, we've been told over and over again by copyright holders (incorrecly, but... you know...) that fair use is not a right, just a defense.
Obviously, I think that GigaOm should be free to explain to people how unauthorized access to the Olympics works -- and I'm hoping that NBC Universal isn't so myopic as to go after the site for this post -- but in a world where secondary liability on third parties is "the law," posting anything like what NewTeeVee posted suddenly becomes a potential liability. This is yet another reason why we should be quite concerned with ACTA's intent to lock in
this kind of problematic secondary liability on third parties.