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
    Anonymous Coward, 28 May 2009 @ 5:29am

    Re: Re:

    Mike, Youtube is but a single site, and is still working in the same manner as always:

    - Random people can put up anything.
    - Copyright holder must locate that particular video
    - Copyright holder must notify youtube.
    - You tube removes videos
    - Second random person puts up anything
    - Copyright holder must locate that particular video
    - Copyright holder must notify youtube.
    - You tube removes videos

    You can see how this gets old fast.

    "Actually, it does not. The copyright holder doesn't have the "burden of proof." They just need to file a takedown. No burden of proof at all. Do you know what burden of proof means?"

    Yes - it means that the copyright holder must do something to assert their rights, that the assumption is that they have no rights, and they have to prove it. The assumption made by youtube (and pretty much every web2.0 company) is that the guy submitting is does have the rights to do so. YouTube does not require it's posters to prove those facts. They shift that burden to the true copyright holders, who must file documents for each item to show they have not permitted this use. DMCA is a free pass system, placing the burden of policing on the copyright holder, in the meanwhile youtube profits from the use of the video,music, or whatever in question without the right to do so. When notified, they remove it, but they do not in any way have to pay the copyright holder for the time used.

    "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?"

    Youtube is a single site on an internet of millions of sites. Copyright holders under DMCA are obliged to contact each site that misused material for each individual misuse, and they gain nothing from the effort, because the way DMCA is structured there is no easy way to sue for infringement.

    Basically, DMCA is a free pass system. It allows sites to use whatever they want, as long as you take it down if you get notified, otherwise, go ahead without any proof you have rights, because there is no issue.

    Mike, in all seriousness, because of my business I am very aware of the implications of DMCA on a day to day basis (people I work with). You may have a theoretical opinion, but the reality, where the "rubber meets the road" is that DMCA gives people with no rights an incredible free pass that they have leveraged into various business models. Pre-DMCA legislation, Youtube would have been shut down the first week, because they would have likely been found liable for all of the violations on their site, and been sued into the dirt. With the poorly written and poorly considering DMCA, their business model now works with little chance of losing in court, providing they are prompt to remove stuff on notification. They can continue to knowingly use material that they suspect is in violation, provided they are not specifically notified.

    It is a horrible system that does nobody any favors, except those that profit from the free time.

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