Posted by: Marcus Beecher
April 19, 2015
On March 26, 2015, Twitter released Periscope. Periscope allows users to broadcast what they (or their devices) are seeing in real-time to their followers. The makers of Periscope intend the app to become “a way of discovering the world through someone else’s eyes,” or, in different words, a “visual pulse of what’s happening right now.” A Periscope user can open the app, push a button, and start filming. That user’s followers will be notified that the user is ‘live’ and can then view what the user is filming, as the user is filming it.
Anybody who follows cyberspace law probably read the last paragraph and thought: ‘an app that allows users to broadcast anything their phone is pointing at? Ya, that’s going to lead to some serious copyright infringement.’
Indeed. It would appear that quite a few Periscope users recently pointed their phones at their TV screens, and broadcasted Game of Thrones to their followers. HBO, of course, is not happy about this development. In fact, HBO is seemingly not happy about Periscope in general, calling it a potential tool for “mass copyright infringement.”
Periscope, according to its terms of service, is very much against copyright infringement. It will respond to takedown notices, remove infringing material without prior notice to users, and even terminate the accounts of repeat infringers. It also has a designated agent for notice of alleged copyright infringement. The terms of service reveal that Periscope is smartly set up to take advantage of the DMCA Safe Harbor provisions, which can be viewed here.
That makes things interesting for copyright owners such as HBO. As long as Periscope meets the Safe Harbor requirements, it will be free of liability for the copyright infringement of its users. That being the case, HBO could only then sue the actual users for infringement. Thus, the best way for HBO to make sure its copyrights are not violated by use of Periscope is to constantly peruse Periscope broadcasts for copyright infringement, and then send Periscope takedown notices, which Periscope must comply with in order to maintain its Safe Harbor status.
Interestingly, this means that HBO, not Periscope, bears the burden of finding infringing material in real time. Periscope has no duty to act until it is notified that some material is infringing (unless, of course, it can be shown that Periscope knew about infringing material beforehand and did nothing about it). This is the effect of the Safe Harbor provisions. It means that users will probably continue to post infringing material, and that material will stay up until the copyright owner notices it. How long will the material stay up? Well, that likely depends on how popular it becomes, and how many people the copyright owner has employed to search the internet end to end for such things.
For large companies like HBO, this shouldn’t be too much of an issue. After the recent infringements, HBO probably hired an entire legion of interns to search out the next illegal Game of Thrones broadcast, and shut it down immediately. But can either HBO or Periscope act sufficiently expeditiously to shut down a live Periscope broadcast?