Periscope, Meerkat, HBO and the Live-Stream Dilemma

With live-streaming apps Periscope and Meerkat becoming increasingly popular, the introduction of a “live” element in the social media game is creating unique business and legal concerns. While most of the videos streamed on Periscope or Meerkat merely allow users to create real-time videos to share with their followers or show snippets of everyday life (like a walk through the park or a birthday celebration), legal complications can arise when users give viewers a glimpse into highly anticipated and publicized live events.

When Periscope launched in April, HBO issued several takedown notices to the company when the cable giant discovered Periscope’s users were live-streaming the season 5 premiere of Game of Thrones. In Periscope’s first three months of existence, the company received almost 1,400 copyright takedown requests and complied with approximately 994. The use of social media for piracy purposes (and the response in dealing with this problem) is nothing new—for years YouTube has been diligent in self-policing for copyright infringing content and responding to takedown notices. Under the Digital Millennium Copyright Act, third parties like Periscope enjoy a safe harbor if they are not aware of the infringing activity and remove the infringing material when they receive notice of the infringing content. This “notification and takedown” system works when the content is stored on third-party servers, but what happens when the infringing material is only stored on Periscope’s servers for 24 hours or, in Meerkat’s case, not stored at all? Even if a rights holder discovers the infringing content on a live feed, the content would be gone before the rights holder could even issue a takedown notice to Periscope or Meerkat. Some argue that the piracy concern, at least with respect to TV shows and movies, will not become a real problem for media companies because the resolution and quality of a live-streamed video are far inferior to legally posted content or even other pirated versions. Whether this is true remains to be seen (especially in view of constant technological advances), but in the meantime, HBO is certainly taking the issue seriously.

Another issue Periscope and Meerkat present concerns the streaming of live entertainment, like sporting events, by users. Periscope may become a consistent and viable viewing alternative to paid broadcasts because of the interest of viewing sports live. While live-streaming at a football game may not necessarily constitute copyright infringement, it may be a breach by the Periscope user of the contract terms of their ticket. Broadcasters that pay billions of dollars for exclusive live broadcasting rights to sporting events may have a real problem with user-generated live coverage of a game. In May, Pay-Per-View lost many viewers of the highly anticipated Pacquiao-Mayweather fight to Periscope due to cable companies experiencing outage problems and the $100 price tag to view the match live. There were plenty of live-streams of the boxing match available to users, many of which later thanked Periscope on Twitter for providing them a free and easy way to watch the match. Again, how much of a problem Periscope and Meerkat may create for live sports broadcasting is yet to be seen, especially when many viewers may continue to choose viewing games on their television over their phones.

Whether these conflicts escalate into a full legal battle also remains to be seen. Much will depend on how the live-streaming user base grows, how technology improves viewability on user devices, and how Periscope and Meerkat navigate their relationships with companies like HBO in responding to piracy concerns.