Op Ed: Does The Periscope App Infringe Copyright?

May 20, 2015

Law360, New York (May 20, 2015, 10:14 AM ET)

In the spring a young man’s fancy lightly turns to thoughts of baseball — and copyright infringement?

Suppose I go to see my beloved Washington Nationals play the lowly Phillies next week. And suppose I want to try out the new Periscope app on my smartphone. Periscope lets me record the game on my phone and send it live to some or all of my Twitter followers or others. Recipients, in turn, get to keep the recording for 24 hours. (A similar app, Meerkat, doesn’t store recordings.)

Maybe I’m a little uncomfortable about this. I am, after all, a lawyer. And I know that broadcasters like Fox and cable channels like ESPN and MASN pay lots of money to broadcast Nationals games. They probably don’t like the idea of me doing the same thing.

But have I actually violated copyright law? Has Twitter, which owns Periscope? Has my wireless carrier? Some people are already asking these questions — especially in light of the recent Mayweather-Pacquiao fight.

The answers aren’t easy. A copyright infringement case involving Periscope would get complicated quickly. Due to this complexity, the resulting uncertainty, and the consequences of an adverse outcome for both sides, I think the parties would resolve these issues in boardrooms, not courtrooms.

Here’s why.

To begin with, is the Nationals game itself copyrighted? We know that telecasts of games are copyrighted — this is the language you hear on TV intoning about the “express written consent of Major League Baseball.” But I’m recording the game, not the telecast. At least one court suggests that that the games themselves are not copyrightable. Perhaps things in the game are copyrighted, such as the “walk-on” music you hear as batters approach home plate. That, however, raises all sorts of questions, including who the potential plaintiff might be.

If the Nationals-Phillies game is a copyrighted work, we’d next want to know if I have infringed one of the six specific exclusive rights federal law gives to copyright holders. Has a “copy” been made? (Almost certainly, particularly since my followers can store the content I send them.) Have I made the copy? (This is a much tougher question, as one could argue that my followers have “made” copies, not me.) Have I engaged in a “public performance”? (Possibly, although one might question whether my Twitter followers constitute the “public.”) Have I created a “derivative work”? (Probably not, since I haven’t really added anything to the game.)

Can I raise a “fair use” defense? This analysis can involve more art than science. Courts are supposed to examine the nature of the work, the commercial or noncommercial nature of the activity, and the harm it causes copyright holders. These factors seem difficult to apply to Periscope. Does, for example, the harm caused to copyright holders depend on how many Twitter followers I have?

(Of course, I may well have violated the fine print on the back of my game ticket. But that isn’t copyright infringement. It’s (if anything) a contract question between me and the Nationals.)

Enough about me. What about Twitter or my wireless carrier — have they infringed a specific exclusive right? After all, if I am sending copies to my followers, could one say that Twitter or my smartphone has “made” them? Or does the network itself make additional copies I don’t know about as part of its internal functioning? Here again, the question of who has infringed — as between a user and a service provider — divides the courts. Sometimes courts look to who “presses the button,” relieving service providers of responsibility. Sometimes, however, they don’t.

Can Twitter or my wireless carrier be found to have committed “contributory” or “secondary” infringement based on my infringement? This question can also get tricky, as it gets into questions of the defendant’s knowledge of, and participation in, the alleged infringement.

Could they use the Copyright Act’s “safe harbor” to escape liability? This allows providers to escape liability for third-party activity, so long as they do not know about particular infringing content and they comply with what have become known as “notice and takedown” procedures to eliminate the infringing content.

Much about this safe harbor is open to dispute, including the specificity of knowledge required to qualify. Here again, moreover, the law appears not to apply easily to this kind of technology. How can copyright holders even know of my alleged infringement if I send the game only to my (very few) Twitter followers and the games disappear after one day? And how can Twitter or my wireless carrier possibly respond to a complaint before the games disappear? Does this mean the safe harbor always applies? That it never applies? Something in between?

I know one thing — this case is no home run for either side. This is why I disagree with some who suggest that litigation in this area is likely or even inevitable. I think copyright holders will wait and see. If they find themselves not losing money from Periscope — if, for example, Periscope viewing turns out to supplement other forms of viewing — then they need not act. If, on the other hand, Periscope becomes a problem, litigation still may not be necessary. Perhaps this just becomes an issue to discuss in some future commercial arrangement between, say, Twitter and Major League Baseball. After all, neither side wants to live with the long-term consequences of an adverse ruling. (Just ask Viacom Inc., which lost a suit allowing cable operators to use remote storage DVRs, which many at the time had thought infringing.)

Actually, I know another thing. The Nationals will win the World Series this year. Ask anybody.

—By Michael Nilsson, Harris, Wiltshire & Grannis LLP

Michael Nilsson is a partner with Harris, Wiltshire & Grannis in Washington, D.C.

This article is not intended to convey legal advice. It is circulated to HWG clients and friends as a convenience and is not intended to reflect or create an attorney-client relationship as to its subject matter. The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates.

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