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, 29 May 2009 @ 5:15am

    Mike, one day you will actually produce something that you want to protect, and you will find out how DMCA works in the real world. Until then you are attempting to tell someone with experience in the field how the field works. You can fib all you want to your users, but practical experience is different from theoretical classroom work.

    The term "service provider" was aimed at ISPs and such that provide only the connectivity for a user. It has been stretched by companies like YouTube to include their product. But realistically, youtube does filter and does control the content on their site, which means they aren't a transpartent service provider.

    After all, if you want to be technical about it, floor64 is a service provider that could claim to fall under "230" laws. Your blog here is a service as well. There is no difference between what youtube does with submitted content than what your software here does with your blog posts. So you could post up copyrighted material all day, and the only thing that could be done would be to DMCA and get it removed without liability, provided it falls under "service provider".

    "Someone is very very confused. It's sad, really."

    Not really. It's the difference between "in the real world" and "in theory in the classroom". It's sort of why I tend to razz many of your posts, because much of what you talk about is theoretical. Without true examples of what works, you are talking only in theory. Reality is different.

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