Piracy by Livestream

By: Amanda Schwartz

In early 2016 Facebook introduced a new feature to its platform: Facebook Live.[1] It piggybacks on a feature Twitter integrated into its platform in 2015: livestream videos powered by the app Periscope.[2] Livestream technology allows users to collect and distribute video media simultaneously—similar to a live television broadcast.[3] Facebook and Twitter users have shown creativity utilizing livestream technology. Senators engage with constituents from the steps of Capitol Hill, teens share their front row experiences at concerts, and protesters and marchers show an insider perspective not captured by CNN.[4] Social media users also share more exclusive content like subscription based television shows. This kind of generosity is also piracy.

The basic problem stemming from use of livestream technology is users freely share content without compensating the rightful owner for the use. Livestream technology poses new challenges for industries that rely on copyright law and anti-pirating law to maintain control over distribution of their content. The sports broadcasting, music performance, and subscription entertainment industries face audiences that multiply tenfold with audience members’ smartphones that are equipped with Facebook, Twitter, Snapchat, and Instagram. Livestreams pop-up on the internet simultaneous to the live experience and divert traffic from the sanctioned broadcast or simply result in pirated streams of content. To maintain control of their proprietary content and make a profit companies must be able to find the illicit livestreams and shut them down.

The linchpin of live broadcasting is time sensitivity. Having companies scouring social media sites to report illicit streams requires support staff and speed; with billions of social media users worldwide, curtailing content distribution in less time than the content’s airing block is a nearly impossible task.

Facebook has created a tool to help content creators monitor their videos online.[5] With the Rights Management Tool, once users upload the protected content Facebook is able to find problematic copies floating on its platform and block them from further use.[6] The tool is even able to maintain live videos as reference streams.[7]

In May 2015, the highly-anticipated Floyd Mayweather/Manny Pacquiao fight was featured only on a special subscriber based network.[8] With a high subscription cost and unexpected network outages, many users were driven to find free livestream videos of the broadcast.[9] These users thanked Periscope and Twitter with tweets later.[10] HBO and Showtime, two producers of the fight, sued certain websites which had advertised in advance that they would be streaming the fight.[11] The court issued temporary restraining orders against those sites from streaming the fight.[12] Pre-emptive suing allowed HBO and Showtime to block some sites from livestreaming the fight. This August, international audiences were highly anticipating another Mayweather fight on pay-per-view: Floyd Mayweather/Conor McGregor.[13] The networks again successfully secured preliminary injunctions to block sites from livestreaming the content for free.[14] But because “flash infringement” via impromptu livestreaming on social media can happen on many platforms and is not always advertised ahead of time, it is tough to police and especially hard to terminate simultaneous to the broadcast.[15] Livestreaming poses opportunities for creative audience engagement but also weakens the enforceability of copyright laws and content distribution protections.

[1] Jemima Kiss, Facebook to Rival Periscope with New Live Video Feature, The Guardian (Jan. 28, 2016, 6:45 PM), https://www.theguardian.com/technology/2016/jan/28/facebook-live-video-rival-periscope.

[2] Kevin Weil, Introducing Periscope, Twitter: Blog (Mar. 26, 2015), https://blog.twitter.com/official/en_us/a/2015/introducing-periscope.html; Periscope, Up Periscope, Medium: Blog (Mar. 26, 2015), https://medium.com/periscope/up-periscope-f0b0a4d2e486.

[3] Mark Zuckerberg, Facebook (Apr. 6, 2016, 9:54 AM),

https://www.facebook.com/photo.php?fbid=10102764094429401&set=a.612287952871.2204760.4&type=3&theater (“Live is like having a TV camera in your pocket.”).

[4] See, e.g., Livestream video by U.S. Senate Democrats, Facebook (July 27, 2017), https://www.facebook.com/USSenateDemocrats/videos/1408918289177361/?hc_ref=ARTR2VkO6s6COCL8dc0ZQ335bNGKKK2gSfUcVD9V5nx5fYeokJckScKT8wBKZ9QHhYw.

[5] Analisa Tamayo Keef and Lior Ben-Kereth, Introducing Rights Manager, Facebook (Apr. 12, 2016), https://media.fb.com/2016/04/12/introducing-rights-manager/#more-4219.

[6] Jacob Brogan, Facebook Live’s Big Problem Isn’t Porn. It’s Copyright., Slate (Apr. 12, 2016, 4:43 PM), http://www.slate.com/blogs/future_tense/2016/04/12/facebook_live_video_has_a_problem_with_copyright_not_porn_despite_rights.html.

[7] Kerry Flynn, Mayweather-McGregor Isn’t the Only Fight –Facebook Will be Battling Illegal Streams, Mashable (Aug. 25, 2017), http://mashable.com/2017/08/25/livestream-mayweather-mcgregor-facebook-twitter-youtube-piracy/#oSRNxHTegiqX.

[8] See Sam Thielman, Periscope Delivers Blow to Pay-Per-View in Mayweather v. Pacquiao Fight, The Guardian (May 4, 2015, 12:00 PM), https://www.theguardian.com/technology/2015/may/04/twitter-periscope-winner-mayweather-pacquiao.

[9] Id.

[10] Karen Chan, Elaine Lee, Kimberly Buffington, and Carolyn S. Toto, Periscope, Meerkat, HBO and the Live-Stream Dilemma, Lexology: Pillsbury’s Soc. Media & Games L. Blog (Oct. 14, 2015), https://www.lexology.com/library/detail.aspx?g=02801d40-9605-45cc-889c-0ed9cc74dbdb.

[11] Ernesto Van der Sar, Showtime and HBO Sue Over ‘Pre-Piracy’, TorrentFreak (Apr. 29, 2015), https://torrentfreak.com/showtime-and-hbo-sue-over-pre-piracy-150429/.

[12] See id.

[13] See John Eligon, Mayweather, a Defensive Mastermind, Beats McGregor With His Fists, N.Y. Times (Aug. 27, 2017), https://www.nytimes.com/2017/08/27/sports/floyd-mayweather-beats-conor-mcgregor.html?mcubz=3&_r=0.

[14] Aaron Brown, Mayweather vs McGregor Live Stream: Warning-Millions at Risk After Piracy Arrests, Express (Aug. 27, 2017, 1:29 AM), http://www.express.co.uk/life-style/science-technology/846138/Mayweather-vs-McGregor-live-stream-Kodi-watch-Las-Vegas-fight-Sky.

[15] Michael M. Epstein, Social Media and “Flash Infringement”: Live Music Culture and Dying IP Protection, 3 Belmont L. Rev. 1, 2, 7-8 (2016).

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