The Next Big Copyright Battle? The 'Real-Time' Web

from the it's-coming dept

The history of copyright law is pretty straightforward: basically every time some new technology comes along that shows just how obsolete copyright law is, rather than recognize that fact, entrenched interests warn politicians about how they'll just die if they don't get new protections, and another layer of protectionism is slapped onto the law -- not (as copyright law intends) for incentives to create new works, but as a policy to protect an old industry. That's created a house of cards, where copyright law keeps getting stretched and twisted every time it's adjusted. In 1909 the problem was player pianos. A big part of the reason for changing copyright law in 1909 was the fear that player pianos would destroy the market for sheet music and even (potentially) live performances. So the law was changed... but the player piano soon died. But the copyright law it gave us stuck around. When radio came about, we got changes to copyright law to deal with that. When the internet came about, we got the DMCA. So what's next? Perhaps the internet's new big buzzword: "the real-time web."

We've already talked about how it was only a matter of time until someone was sued for "lifecasting." With video recording and streaming technologies getting cheaper and cheaper, there are a number of services out there that let people broadcast anything they're doing. For many of them, it's a lot of fun... but in almost every case, some copyright lawyers could make an argument that it represents copyright infringement. If you are videotaping, and you walk past a TV broadcasting a copyrighted show, some would argue that's infringement. If you happen to hear some music, that's infringement. Yes, there may be a fair use defense, but this is hardly a situation where people are going to want to go to court just to defend the fact that they walked past a TV.

In reality, this should (again) demonstrate the silliness of copyright laws right now. The fact that merely walking past a TV while streaming video could be considered a copyright violation should be seen as a joke. It's legal if I see it with my own eyes, but if I include a virtual eye that lets others see it as well... that's infringement? Yet, there are already lawsuits over this sort of thing, and Liz Gannes at NewTeeVee has a thoughtful article wondering if copyright holders are going to start complaining that the DMCA is insufficient to deal with these sorts of situations.

As it stands now, the DMCA already goes too far in allowing someone to claim they are a copyright holder and demand a takedown of content they believe is infringing. To retain the DMCA's safe harbors and avoid potential liability, a site then has to take down the content. This gives copyright holders (or even those who claim to be copyright holders) tremendous power to force content offline for at least a few days. Yet, the fear is that in a "real-time" world, that's not fast enough. If I'm watching a baseball game, and turn on my camera, by the time MLB or whoever the broadcaster is discovers it and sends out the takedown, the game is already going to be over. They could still sue me and perhaps that acts as a deterrent, but we've see how little a deterrent mass lawsuits have had in the music industry.

So what happens next? My guess is that we'll see some sort of push to change copyright laws again to try to deal with this "problem." Perhaps even something that would put liability on any company that enables "real-time" streaming. The content companies won't want the burden of actually changing their business model, so they'll try to dump the burden of enforcing the old business model on the innovators. Hopefully, though, there are enough folks out there who won't simply let such a change go through unchallenged.
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Filed Under: copyright, dmca, life casting, live streaming, real-time, takedown

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  1. identicon
    cram, 28 May 2009 @ 12:21am

    Re: Re:

    "The copyright holder doesn't have the "burden of proof." They just need to file a takedown. No burden of proof at all."

    The same goes for the uploaders as well. There's absolutely no burden of proof on them. The Youtube warning is a joke, a lot like porn sites saying "Enter only if you are over 18"! As though that's gonna stop people from doing what they want to, even if they ae told it's illegal to do so.

    "As it is now, copyright holders can end up spending much of their lives just trying to keep their material from being ripped off and used on a daily basis with impunity.

    That's also completely untrue. While copyright holders do need to file notices, YouTube now has automated systems that do the job for copyright holders. But why let facts get in the way?"

    No, that's not completely untrue. How can you say it is? There are tons and tons of video sharing sites. Only Youtube has a system for copyright holders. Why let facts...oh forget, when have facts ever bothered you!

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