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 @ 3:05pm

    Re: Re: Re: Re:

    Mike, for the first time, you made a post that both made me wonder about your sanity and made me LOL to the point that I am sure that the guy next door things I am crazy.

    "YouTube profits from PROVIDING A SERVICE. They are not profiting from the content itself."

    OMG. This is the biggest lie of Web2.0. They don't profit from service (hosting), they profit from PRESENTATION of the videos. Is the money made by charging for hosting? Is the money made by charging storage? Nope. The money is made by putting those videos on webpages, and packing them in with ads, and related links to other videos on the youtube system that also appear on pages will advertising.

    As for DMCA, all you have done in this discussion is prove that you have never been on the producing side of content used online (that has any value to protect).

    "This is incorrect. The DMCA (and copyright law) actually gives tremendously beneficial rights to copyright holders automatically. That they have to assert those rights when it is being infringed makes perfect sense. It makes no sense to argue that it's someone else's responsibility to determine whether or not there is infringement."

    You are looking at it backwards. Why should you be allowed to publish something that you don't have copyright or permission to use? This is doubly obvious when the material is clearly copyrighted (say like a TV show or a movie). If I want to publish full episodes of the Family Guy, example, shouldn't the guys who will profit from that publishing (tube site) sort of say "hey wait, did you get permission from Fox to do this?".

    They don't do it because DMCA created a major hole in copyright law. As long as a company (like youtube) honors takedown requests promptly, they have no liability. These companies are aware of the delay it takes between publication and notification, and they are also away that more desirable clips will be published multiple times by multiple users. So they remove the clips that they get DMCAs for, but leave similar material up if no complaint is received. They profit from the time that the clip is up until the time they take it down when they get a DMCA, and they profit from any oversights or missed clips that the copyright holder doesn't specifically list.

    As a copyright holder, you could spend your entire life going from tube site to tube site writing up DMCAs and sending them in, and the material back fills in almost as quickly as you pull it off the other side.

    In the meantime, who profits? The tube site. Amazing how it works, because as long as they follow the DMCA to the letter of the law, they have no liablity.

    "You appear to be woefully ignorant of the very basics of liability and copyright law."

    Sorry, in this area, I am confident, having specific experience in it. Basically, I produce a video, and sell it for $10. One person buys it, and posts it to youtube. As the copyright holder, I must first check youtube (and all other tube sites) on a regular basis looking for violations. I then must send a registered letter to youtube, with the DMCA notification. They then have a set amount of time after reception to comply. They comply. Round trip time to do this, probably 7 days.

    1 hour after the video is taken down, the user again uploads the same video, and the process restarts.

    Video up time per week: 7 days less 1 hour. Downtime? 1 hour. Liability to Youtube: Zero. Who made income? Youtube.


    "The DMCA has tremendous problems, but the safe harbors are simply common sense."

    Yes, they make sense, if the entity claiming safe harbor isn't in the content publishing business themselves. Youtube is a file host like you are a newspaper publisher. Neither is a true statement. Youtube plays the innocent host because it is a nice legal place to stand, but the reality is that they are not a host,but a content syndication and presentation system. If they were a filehost, they would not exert any editorial control on the content, they would not format pages, they would not provide any related file information. They would allow people to upload a file, and other to download it period. As soon as that file gets changed in any manner (including encoding) or gets pushed off onto a webpage owned by youtube, they cross the line into the realm of a publisher.

    The only cases in the past going down this road have all been settled long before they made a courtroom, so their is no presidents set. Even the Viacom lawsuit went down that road, but this argument was never settled in a court of law.

    Seriously Mike, this is an area you need to read up on, and learn in practical terms what the implications are. You look at DMCA from it's evil implications, but you don't seem to understand that it also has provided a huge free pass to people who seek to abuse copyright material online.

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