Periscope Piracy and the Tao of Tech Writers

Last December, a few glasses of Rioja and I wrote a pretty grumpy rebuttal to Washington Post tech writer Caitlin Dewey, accusing her of cheerleading for media piracy.  A few respondents, including Dewey herself, said that I was unfair, that her article about The Pirate Bay was merely reporting facts without editorial.  Of course, with certain styles of communication, it can be very difficult to tell the difference between dishonesty in intention and ignorance of how one sounds.  Is the author choosing her words carefully in order to engage in a zen-like OpEd, in which she advocates an agenda without clearly declaring so?  Or is the author unaware that her words have connotation and tone that imply a point of view she doesn’t really have?

Here’s the sound of straight reportage by Rhiannon Williams for The Telegaph:

“Game of Thrones is the most illegally-downloaded TV programme internationally, accounting for a quarter of all pirated downloads from 100 torrent sites. The programme was downloaded over 1.4 million times between January and February this year – nearly 50 per cent more than its nearest rival The Walking Dead.”

And here’s a work of unequivocal editorial by Grace Dent for The Independent.

“Fans wanted to see all-new Game of Thrones right then, right now. The fact that this was plain theft, or that it might offend lots of their beloved actors, producers and TV bigwigs made no difference. Morals? Ethics? Who are you, the Dalai Llama? It was the weekend, time for some “me time”, and Game of Thrones fans – with Britain topping the list for thievery – wanted to shove all four episodes instantly into their greedy snaffling eye-holes.”

And here’s Caitlin Dewey writing about the new phenomenon of using Periscope to live stream an episode of GoT:

“…tens of thousands of people pirate that show every day — but the mere possibility of more people live-streaming has HBO running scared. The company promptly declared Periscoping “mass copyright infringement,” despite the utter lack of any audience approaching “mass.” And yesterday, the company sent a series of takedown notices to Periscope over GoT. Which is extra-peculiar, since HBO usually takes a pretty chill stance toward “Game of Thrones” piracy.

This, however, is piracy of a totally different breed. There are no torrents, there are no files, there are no thumbdrives or DVDs. That makes Periscope a bit of a challenge — not terribly dissimilar from the era when VCRs threatened TV.”

It is admittedly a little hard to tell if Dewey is only reporting or also commenting here.  Is she aware of her provocative choice of words, or is she just being careless?  For instance, HBO does not have a “chill stance” toward GoT piracy; the company, like any other rights holder, has a strategic stance, which wise or not, is entirely at their discretion.  Thus, there is nothing peculiar, from either a strategic or legal perspective, about making distinctions between one form of piracy and another. So, by suggesting that all piracy of GoT ought to be viewed equally in HBO’s eyes, Dewey is expressing an opinion, and a very unconsidered one to boot.

In fact, the lack of recording media to which Dewey alludes is just one reason why Periscope is very much dissimilar to the Betamax case, which is what she means when she refers (and is also editorializing) to “the era when VCRs threatened TV.”  She’s correct that a DMCA takedown request is meaningless in a situation where no data is stored that can be “taken down,” but her general thesis (if there is one at all) appears to be that Periscope represents a potential form of mass piracy that lurks in muddy legal waters with regard to copyright.  And I doubt this is the case because the use of Periscope in this manner rather clearly infringes on the right of public performance — an illegal broadcast — which is territory fairly well covered by copyright law.

For readers who haven’t heard, Periscope is a live streaming app owned by Twitter that enables just about anyone with a smart phone to live stream whatever is in front of the lens.  So, what happened with Game of Thrones was that some users pointed their cameras at their TV’s  during the broadcast of a recent episode, and a whole bunch of people watched the show via the app on their handheld screens.  Yes, it’s a pretty lame way to view a multi-million-dollar, high-production-value TV show, and Dewey says as much at the end of her article.  But neither she nor I are copyright attorneys, so we’re the kind of writers who should try to be careful about making mashups of caselaw, particularly those that are entirely unrelated to the story at hand.

For instance, Dewey’s two comparisons to the VCR are meaningless distractions in an article about  a technology like Periscope. The right to time-shift by recording broadcasts for later viewing (i.e. the decision in the Betamax case) involves privately stored media that has both legal and functional limits — limits that stop the program recorder from infringing on the right of public performance.  For instance, you may record Game of Thrones on your VCR, DVR, or even some other medium for viewing alone or with friends and family later, but you may not exhibit that recording in, for example, a public theater or coffee house, either for free or for money, and you certainly may not broadcast it.

The right to record for the purpose of time-shifting bears no resemblance to a technology that enables live broadcast to hundreds or thousands or potentially millions of viewers.  The functional differences are observable by common sense and don’t require any knowledge of copyright law.  That said, my colleague Terry Hart, who does know something about copyright law, explains, “The drafters of the 1976 Copyright Act clearly anticipated that new communications technologies would allow the exploitation of works without any copies changing hands. They created a new right of public display to apply to static works like books and images. And they drafted the right of public performance to include transmission and communication ‘by means of any device or process.'” Citing the 1965 Supplementary Register’s Report on the General Revision of U.S. Copyright Law, Hart also shares this:  “… in certain areas at least, ‘exhibition’ may take over from ‘reproduction’ of ‘copies’ as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition [later replaced with the word display] should be expressly recognized in the statute.”  So, not only is copyright likely well-armed for a technology like Periscope, but it’s been anticipating the need for at least half a century.

Dewey also grazes the subject of transformativeness with regard to using Periscope; and this might raise some interesting questions. If I live stream a TV show, or even a live performance, while making commentary along the way, or if I turn the whole thing into a new work of performance art, would the use be transformative?  Probably. But that does not mean every use in this manner would be a fair use when judged according to the four factors applicable in such cases.  Every use would have to be judged individually; so, just streaming a football game with your own commentary, for instance, would probably fail with regard to assessing the amount of original work used and the potential economic harm to the original.

More broadly with regard to Dewey’s style of commenting on these matters is that she sounds to me like someone sponsoring a general point of view predicated on the idea that when technology makes a particular process or behavior possible, the relevant legal framework must be dismantled in order to “make way for progress.”  Maybe that’s not her view, but I do think articles written in her style, and bearing an imprimatur like The Washington Post, feed this general attitude among readers.  And whether we’re talking about Periscope or any other innovation, this perspective forgets the purpose of legal frameworks in the first place. After all,  “Progress” has been the generic excuse of every vested interest that ever wanted to get away with doing harm in the pursuit of personal fortune. “Progress” has been the argument for pollution and poor working conditions, too; and that’s why we create legal frameworks that say, “Bullshit, you’ll have to figure out a way to make money without dumping sludge in the river.”  At least we try to do this.

So, if Caitlin Dewey’s point is that copyright law is indeed unclear with regard to an application like Periscope, then is she presenting her story by way of identifying a legal loophole in need of closing?  I doubt it.  As with her article about The Pirate Bay “creating the Internet,” as we know it, I’m at least confused as to what point she’s making at all about copyright, piracy, or technology.  Because in the absence of a clearly stated opinion, one looks to reporters for straight facts, and that doesn’t quite seem to be her bag either.   After all, the article is titled,  The future of online piracy is easy, free and already in your pocket.  In my experience, that headline is what we call advertising.

© 2015, David Newhoff. All rights reserved.

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43 Responses to Periscope Piracy and the Tao of Tech Writers

  1. John Warr says:

    OTOH She wrote a not too favourable article on wikipedia earlier on the week which prompted the idiots there to create an attack article on her.

    Caitlin Dewey is a reporter with The Washington Post, covering digital and internet culture. Dewey has previously written for The New York Times and The Atlantic.[1][2] Dewey’s writing has been described by Wikimedia New York board member Bob Kosovsky as “barely worthy of a college freshman”.[3]
    https://twitter.com/caitlindewey/status/588686674978209793/photo/1

    The article has subsequently been deleted.
    https://en.wikipedia.org/w/index.php?title=Caitlin_Dewey

    • David Newhoff says:

      I didn’t see that. I think Wikimedia deserves plenty of criticism, and organizations have a responsibility to respond without personal attack. On the other hand, what I have read of Dewey’s work is fairly immature in style, which is related to the point of this post. She adopts this sort of bubbly, effusive tone that winds up conveying a point of view whether she means to or not. And that’s not necessarily of any use to anyone when dabbling in otherwise complex issues. It doesn’t really read like material that belongs in a traditional publication, but hey, the kids probably dig it.

      • AudioNomics says:

        That last fragment “but hey, the kids probably dig it.” sums up the desperate tone “reporters” have taken on in recent times.
        No longer do they report facts and keep the bias straight down the middle (as much as was ever possible) , but they are freakishly an cowardly clinging on to Facebook ‘likes’ and fearing the dreaded YouTube comment threads -which read like a middle-school locker conversation (likely because actual thinking adults aren’t the ones leaving comments). It’s particularly ironic and pitiful to watch as it was the Twitter and Facebooks an Google’s and aggregators to which news outlets owe their revenue shortfalls, and it’s these same leeches they oh-so-willingly bend over and pucker up for. Instead of doing their important duty of reporting the straight-dope, news outlets are little more than ‘me too’ kissass shills these days. They went out to lunch in the run up to the Iraq war, and never returned…

      • It’s like reading replies from Statler and Waldorf…

        “Progress” has been the generic excuse of every vested interest that ever wanted to get away with doing harm in the pursuit of personal fortune.”

        What you have said is that all innovation has come off the backs of the innocent. That the intent of such progress has purely been financial gain. Generalize much?

        You spend a whole post criticizing someone for their style of writing, when it is clear your bias limits your ability to process said writing in an objective manner, and then sum up your post with some nonsense like that. Here is what I believe to be relevant to both your post and hers.

        With progress there comes conflict between the old and the new. As demand for the new grows, it is important that the old not be discarded with out consideration for what made it useful in the first place. “Innovators” have a responsibility to execute their ideas with all variables in mind, not just the ones that pertain to meeting demand and reaping a profit.

        Several things are at play here. Not the least of which being a persons ability to share WHATEVER experience they want to share. But also the ability of content creators to justify making more content as well as profit from it without fear of true infringement and theft.

        In MY opinion this will require a shift in thinking from ALL sides as well as compromises in regards to what is and is not actually a product.

        A good place to start is to stop overestimating both the value of multimedia content as well as the impact of something like Periscope.

        “Just over a year ago, we became fascinated by the idea of discovering the world through someone else’s eyes. What if you could see through the eyes of a protester in Ukraine? Or watch the sunrise from a hot air balloon in Cappadocia? It may sound crazy, but we wanted to build the closest thing to teleportation. While there are many ways to discover events and places, we realized there is no better way to experience a place right now than through live video. A picture may be worth a thousand words, but live video can take you someplace and show you around.”

        That is the mission statement for Periscope. Do you honestly believe their intent was allowing shitty streams of GoT? Are you really suggesting this incident negates their actual reasons for creating something of this nature?

        Also, I think we have to ask the question, what exactly was stolen? Views? How can a view be stolen? Seriously. GoT is a cable show. There is no advertisement. If I invite 10 people over, you still got one view. So what exactly was stolen vias a shitty stream?

        That is the point. Not the fact that people did this, but the fact that there is no real value in a view unless someone paid UP FRONT to see it. Is it the scale on which this happened? OK, fair enough. Sure people could have used skype or some other service to do this on a smaller scale, but the ability to simply broadcast to the world, yeah I can see the concern.

        A very legitimate concern. But is that really HBO’s problem? Or the creators of GoT?

        Isn’t the real problem that people don’t care where they see the show? That one show does not justify the cost of HBO to a lot of people?

        So isn’t part of the problem limited access? Do you think people would still use Periscope if HBO opened up GoT as a stream to everyone? Slapped a few ads on the beginning and end like Hulu and then streamed it legally from the source in full HD? I am not saying they definitely would, but it is something to consider.

        “This, however, is piracy of a totally different breed. There are no torrents, there are no files, there are no thumbdrives or DVDs. That makes Periscope a bit of a challenge — not terribly dissimilar from the era when VCRs threatened TV.”

        She is not condoning anything. But she is making the point that this is not the same thing and selling bootleg DVDs. How did you use your VCR? I know a lot of people who taped their shows, then used the VCR to skip commercials, thus cutting into the profitability of advertising on that medium. Essentially, they were used to cut out the middleman, just like this app.

        I don’t want to get into a long debate. So I will sum up with this.

        It is the consumer that is driving these things. The consumer who is tired of being nickle and dimed by big media companies who are not generally beholden to those consumers. So what you have are people paying for services, or for DVD’s or movies, or music with no real say in what is produced and how.

        That is purely driven by what sells. So some people, who maybe didn’t like the new direction their favorite show went in, or who weren’t jazzed about the experiential sound of that band they like, find less value in these things that the people who created the works would like. And sometimes that value in terms of money, is zero. Maybe they think they paid their fair share for that last movie that sucked ass. Or that album with one song they liked. Not saying it is right, but it is something that must be considered.

        This is a two way street and so long as creators want the ability to make the content that THEY choose, and not be beholden to the audience as a means of production, then they have to accept that their work does not have a pre-determined value and must be managed accordingly.

      • David Newhoff says:

        Actually, she’s not making any points at all. I don’t pretend not to have a bias; I think I am quite clear about writing editorials. Caitlin Dewey is unclear and writes like a teenager, to be honest. That’s part of the point. Also, what I said about progress is true but not exclusive to all claims of progress, and any reader should be able to figure that out. Finally, I think you’re overthinking Periscope at the moment; it doesn’t have to become a tool for mass infringement, but in context to Dewey’s piece, she’s just generally wrong. Nothing you or she is saying about VCRs is relevant here. And I don’t actually care if the consumer feels “nickel and dimed” by companies charging for products that cost tens of millions of dollars to produce. It is a bullshit rationalization, that if taken too far, will simply mean these products consumers clearly love won’t get made. Yes, it’s a two-way street. Producer makes, consumer buys. If consumer doesn’t like Producer A, he can switch to Producer B.

      • ” It is a bullshit rationalization, that if taken too far, will simply mean these products consumers clearly love won’t get made.”

        So can I assume you are not familiar with crowd funding? Because that is becoming a more and more viable way of producing the content that consumers want while ensuring the creators get exactly what they need to produce it.

        In regards your statement on progress, taken out of context of your other points, I stand corrected. In the quote that I presented, you statement, while misguided IMO is not actually an indictment of all innovation. My apologies. No need to muddy the waters with misinterpretation.

        As to her writing. I don’t see it as being ambiguous, but then again, I am not looking at it from your ideological perspective.

        And the relevance comes in regards to consumer choice and behavior. The threat comes not from blatant theft, that is a fact of doing business. And no I am not condoning theft, but it happens and it is not what truly threatens a producer, be it media content or toaster ovens.

        The threat, IS consumer choice and behavior. Which was explained pretty clearly. If I like a movie, and I can stream it, legitimately or not, what incentive to I have to buy it? I have not purchased a DVD in years, and I have also not pirated any movie either. I simply have no need.

        I also don’t spend $30(between tickets and refreshments) on every movie I have a passing interest in. I don’t subscribe to HBO, just to watch GoT or The Sopranos, or whatever. Does that mean I won’t watch those shows if I have the means? For me, unless it is legitimate, the answer is yes. I don’t have the time or energy to try and put one over on “the man” to be in the know about the latest pop-culture phenomenon.

        The point being, I choose what is worth my money. Not the studio. Not the writer, not the pop star. I didn’t ask them to spend millions of dollars to make a show, or an album, and as such I don’t owe them anything. No one does. Their justification for producing content should come from the number of people who are willing to pay for that content. And honestly, in general, that is exactly how it works. If I love a TV show and there aren’t enough people like me and the show gets cancelled without an ending, do I get my time back? No. I take a chance that the things I like will be complete and enjoyable, just like they take a chance that the things they put time and money into will turn a profit. So unless we come to some sort of up front agreement on what will be produced and for how much, neither of us is beholden to the other for anything.

        How do you resolve that? How do you justify the costs of production while guaranteeing value to the consumer? Other industries do. In fact pretty much every industry does it. Why should content creators be any different?

        Something like Periscope, should be used as a tool. It should present content creators with a window into what the consumer wants, and THAT should at the very least be taken into account when determining how content will be presented. No, it should not be the only factor. No, we don’t want the only content being produced to be based off of consumer request. But we also don’t want it based off of pie charts and up trend data either.

        I don’t understand what your goal is in all of this. Clearly it is not the best interests of the consumer. And in some ways I don’t think you have the creators interests at heart either. Fair compensation? That already exists? And end to piracy? That is never going to happen? More accountability from technology creators? Agreed, so long as it goes hand in hand with more from the creator side as well.

        You have a voice, one that is generally very astute. I do not understand why so much of your time is used in this manner? I truly don’t.

      • David Newhoff says:

        In the case of this post, my goal is not to beat up Caitlin Dewey, per se, but I do very strongly believe the way in which she and others write about these topics matters a great deal in terms of public debate and understanding of the issues. You ask several questions in this response, and I’m sorry I don’t have time to answer each; but as a generalization, you’re right in principle — people won’t pay if they can avoid it — but wrong in the sense that there’s a tipping point at which the thing won’t be produced. GoT is clearly popular and justifies its existence and every dime it cost to make, so I’m not sure where the subjective nature of “value” comes into play here.

        More to the point, there is almost nothing you can buy that is produced by the kind of popular consensus you imply. What chaos would that be? Companies do market research and all that, which includes entertainment producers, but then they make their best guess about what consumers want, take the risk of putting it out there, and hope it sells. Why is GoT different from Chryler’s latest offering in principle? Because there are technologies that enable disrupting that transaction? Any way you slice it, the end result of your logic will be that one day GoT doesn’t get produced, which means consumers lose out on something they actually want.

      • “— people won’t pay if they can avoid it —”

        “The only things that matter are: want it, want it now, and don’t want to pay.”

        I think that is a place where we have a misinterpretation of my thoughts.

        I don’t think people will pay unless THEY see value in a particular good or service. That does not mean they won’t pay if something can be had for free. I think that solely depends on the circumstances in regards to “free”.

        “Why is GoT different from Chryler’s latest offering in principle? Because there are technologies that enable disrupting that transaction?”

        How much do you think people would be willing to pay for a car if they could go to the dealership, click a button and have one materialize in front of them? If they could make a copy of said car and give it to their wife, or their kids? If it could be produced without degradation of the original and required no further usage of materials? All it costs at that point were the space in which it sits?

        In principle these things are different because a car has a tangible value both in materials and in actual usage. To make another car, more materials are required.

        Can the same be said for GoT? Which is why I asked the question, what is a view worth? See, we are not talking about GoT as a creation when talking about something like Periscope. What we are talking about is a view. An experience. To make more GoT, obviously more time and money are required, but that episode, that instance, once created a “view” doesn’t cost the producers anything.

        It may have value, but that is solely dependent on what people are willing to pay, just like a car. But unlike a car, producers are not factoring in their material costs of creation into the presentation. They are not setting some minimum price PER VIEW. They are instead, distributing the creation as an experience and basing the price of that experience, not on the cost of production of THAT piece of content, but rather on the going acceptable rate for media in the digital marketplace.

        Now imagine if like a car. GoT was priced(in regards to views, or even media purchase) in the context of production cost. So it would not be the same price as say, American Pickers, or Survivor. What effect would that have on it’s popularity? What effect would that have on the consumers perception of value? Do you think people would be so willing to share their copies of GoT? I don’t see a lot of people lending their cars to their friends on an infinite basis, do you?

        So the core problem is not piracy. That is not what hurts creators most in my opinion. The core problem is creative works having a pre-determined value, be it $1 or $100, that completely ignores the actual cost of production. But then again, when duplication doesn’t impact the original or further production, what is it truly worth?

        Consider the gaming industry. Games are indeed pirated, but not nearly on the scale as with other media. Why? Well for one thing games are tied to particular hardware. Yes there are PC games, and yes, they are in fact pirated a lot more than those tied to a console. Games are expensive, more so than a lot of other media. $60 a pop on average. They have huge budgets, just like other media, yet at the top tier, they rake in money hand over fist. How? The consumer accepts this because that is how the media has been presented. No one balks at a $60 game tied to a specific device, could you imagine if music were presented the same way? Movies? So why isn’t it?

        Mass market appeal, and the understanding that the latest action movie is not going to be any different on your TV as it would be on your friends TV. That streaming GoT for the experience is not the same as wanting to relive that experience over and over again. So to me the big question is how do we separate the people who want to purchase the rights to relive the experience vs the people who just want to see it once?

        “The only things that matter are: want it, want it now, and don’t want to pay.”

        Pay for what? That is the question. What are people paying for and what should the going rate be, understanding that a view, or a listen, is not the same thing and a sale. I am not saying people shouldn’t pay, but the distinction has to me made in order for “free” to go back to meaning, given freely, as opposed to being a means of watching or listening to something a consumer has no interest in owning.

        something can be had for free. I think that solely depends on the circumstances in regards to “free”.

      • David Newhoff says:

        Again, forgive my not responding to everything, but when it comes to motion pictures in particular, it’s a good thing consumer prices are not related to cost of production. Otherwise why should the ticket or rental price for a film that cost $1 million to make be roughly same as the ticket or rental price as the film that cost $100 million to make? Profit is driven by volume based on popularity. And as I’ve pointed out few dozen times, prices for filmed entertainment are lower than they were 30 years ago.

      • “Profit is driven by volume based on popularity.”

        Why yes, yes it is, imagine that, profit being related to sales to actual paying customers.

        And somehow, the biggest movies seem to make money(a lot of money) despite piracy. Despite streaming. How do they do that? By control of access. Sure, you could probably find a bootleg of a first run movie on day one, but it is not going to be the same as catching it on the big screen.

        So to me, the problem in regards to content and protection of the creative investment is very much tied to how the AVERAGE consumer is able to access the content. How tightly it is controlled.

        That, to me is the major problem to be solved. To truly protect the creator and their content, we need to figure out how to turn change the perception of that content. Bring it more in line with the aforementioned Chrysler.

        What if users could ONLY stream content from the source for a set amount of time. Just like a theatrical run. One way to get the content. Hold a sales embargo for the first month.

        Create subscriptions for labels, genres, or maybe specific artists. Money directly into their hands. Make it easier for smaller artists to get funding in ADVANCE directly from their fans.

        Make the consumer feel a monetary connection to the content, thus making them feel more responsible for the product.

        Just some food for thought.

      • Anonymous says:

        Where is the progress in better ripping something off? In what way are better safe-cracking tools progress?

        Justification that “The consumer who is tired of being nickle and dimed by big media companies who are not generally beholden to those consumers” are rather shallow as it isn’t the crap stuff that is being pirated.

      • AudioNomics says:

        AV,
        not to mention the fact that She is writing for a newspaper , and Dave is commenting (known as an editorial -where it is known to readers that opinion is being expressed)….
        I dunno, maybe you’re too young to remember when news outlets reported facts? just a guess..

      • @Audionomics, who’s facts are you referring to? David’s interpretation of what she wrote does not constitute him being privy to “the facts”. As you said, he IS editorializing. He makes no apologies for his bias. And that’s fine, but isn’t it hypocritical to use his own interpretation of the “facts” as a means of disputing what was presented?

        That’s like a Christian claiming the Bible is true because the Bible says that it is the truth.

        “Justification that “The consumer who is tired of being nickle and dimed by big media companies who are not generally beholden to those consumers” are rather shallow as it isn’t the crap stuff that is being pirated.”

        Huh? How do you know? Isn’t one of the major arguments on this blog about how piracy hurts the little guy most?

      • David Newhoff says:

        Just to clarify, there’s a difference between having an point of view (e.g. I think piracy is bad v good) and having an opinion predicated on a rationale (e.g. Betamax case is relevant to Periscope). Even then, I don’t say unequivocally that copyright law is equipped to address Periscope, but I state that I suspect it is and back that up with citations. This is a little different from a writer tossing about Betamax, fair use, and the DMCA somewhat randomly to make either a vague point or really no point at all.

      • John Warr says:

        Isn’t one of the major arguments on this blog about how piracy hurts the little guy most?

        Who said the little guy is creating crap? Piracy takes no account of little guy, big guy, medium guy. The only things that matter are: want it, want it now, and don’t want to pay.

        There is no distinction between small band, big named band, small label, corporate label, Hollywood film, small independent film. All are pirated the big named stuff is just pirated in greater numbers, 500 pirates of a small guys work may well have a greater effect than 50,000,000 pirate downloads of a majors work.

      • Anonymous says:

        David–
        “Why is GoT different from Chryler’s latest offering in principle? Because there are technologies that enable disrupting that transaction?”

        Kind of.

        Copyright holders don’t sell the actual works that they create; they can’t. Instead they perform a service, such as copying a work into a medium, and then they sell the medium. It’s like turning a service into an object.

        The problem with this model is that it separates what people want — the work — from what people are asked to pay for — the copy, the cable subscription, etc. Many people aren’t going to, and aren’t interested in, creating their own substitute for the work. But they are able to create their own substitute for the thing they’re asked to pay for.

        We have the technology to make our own copies of works. It’s not new or anything, though it has gotten easier over the years. Using it is roughly similar to cooking a meal at home that replicates the recipe used at a restaurant, or growing your own vegetables using seeds and cuttings from what you bought at the store.

        So it’s really no different at all from making a copy of a Chrysler, save that it’s a little harder to download a car than it is an episode of a TV show. At least, it is for now. In time, people will do that too, and feel just as good about themselves for doing it as they do about pirating works now.

        Copyright holders would do better finding a way to charge their customers for the actual creation of works, which most of their customers will still rely on the copyright holders for, rather than for mass publication, which decades of piracy have shown we’re perfectly capable of doing well on our own.

        *****

        theangryvillager–
        “What if users could ONLY stream content from the source for a set amount of time. Just like a theatrical run. One way to get the content. Hold a sales embargo for the first month.”

        Then they’d pirate it. Some, in order to save money. Some, in order to keep a copy for later use, rather than having to stream it (particularly useful if you want to watch it on a mobile device and not blow through your data plan). Some, because they’d find it more convenient that way. Some out of principle.

        I think you’re going in the wrong direction with this.

        “Make it easier for smaller artists to get funding in ADVANCE directly from their fans.”

        That, I think, is probably the better option. Rather than have third party investors pay for a project, expecting to make money by exploiting copyrights, let the audience themselves invest directly, and then at least turn a blind eye toward non-commercial piracy. With the work (and the amount of profit that the authors require) already in hand, piracy would be no big deal.

      • David Newhoff says:

        Anonymous, I get all that, but this argument mixes copyright law, technology, and business in a way that I believe to be untenable. It’s all well and good to spin out theories about other models like “charge customers for the creation of works,” but that’s a pretty backwards way to produce anything, especially creative works. Why do you think pop music is even more homogenous than it was 30 years ago? That’s the sound of giving people exactly what they want and never investing in the thing they don’t know they want until they experience it. I’m not saying it can’t work ever; I understand crowd funding quite well, but I very strongly believe that model has certain limits, and it’s naive to think that there’s a silver-bullet business model that will cure all these ails. We’ve gone around this barn many times, but I’ll stand on principle that the market is generally best served by capital investment for speculative returns in any industry.

      • Pop music is definitely samey at the moment. As I’ve said here before I mostly listen to stuff on the ECM label these days. Recent purchases have been Siwan by Jon Balke (11th-16th century al-aladalucia poems set to music), Sunrise by Ketil Bjornstadt (prose of edvard munch set to music). Being Dufay by Ambrose Field (electronica using the music of 14th century music of Guillem Dufay). On the World Circuit label Afrocubism. One is not going to get anything like these in the pop charts and almost nothing like this in any of the remnant record stores, though one may well have had some similar stuff in the 60s and 70s.

        In film is there anything like Siddhartha today? Slaughterhouse 5? La Vallee (soundtrack Pink Floyd)? Kiss of the Spider Woman?

      • David Newhoff says:

        John —

        I suspect music set to the prose of Munch would be a niche offering in any era, and I further suspect that these niche offerings may be well-served by innovations like crowd-funding. I think such works really do foster that kind of relationship between creators and fans; and those works are unlikely ever to gain the kind of polarity that becomes big business or even pretty big business — sleepers notwithstanding. But between these works and the over-corporatized, too-safe, and homogenous pop stuff, there is (or was) a fairly diverse middle market of works into which I would even place relatively big names like the Eagles or The Who. Such artists didn’t just produce a bunch of dance tunes with lyrics about nothing, and they came about due to the basic invest/produce/sell business model to which I refer.

        Film is another bag of worms for many reasons, but a very similar thing happened. My personal view is that the late 60s to 1980ish was a real golden moment for mainstream film because a lot of the major studio fare was the kind of work that today would generally be considered independent. Today, the studios produce a lot of safe material, some of which is okay, some of which is awful; but the investment opportunities for the indie making what would be equivalent to Slaughterhouse 5 are considerably reduced. And crowd-funding is not the sole answer by a long shot. What’s happened to film is not all due to the Internet and piracy, but those threats don’t help. But in the context of this thread, I’m really defending a basic capital-market business model independent of other factors. Keeping on topic, this began with AV being a bit too literal I think about the notion of “giving people what they want.” The irony is, of course, that he simultaneously complains about big producers making a lot of “crap,” and it is exactly because those producers try too hard to give people what they think they want that so much crap is produced.

        Nothing creatively fresh or interesting is produced by committee, let alone popular consensus. Where the needle points to “art” is in the eye of the beholder, but I do think that the mainstream creative industries used to be more diverse.

      • HI David. ECM have been doing that for 45 years, they are the quintessential indie label, many of the late 70s early 80s indie labels took their cue from them. The think is that ECM are well established its the label that has the following that is then transferred to the Artists. Would I have picked up Munch prose set to music, probably not, if it has the ECM imprint then definitely worth the risk of purchase. But you are right the works are niche won’t make million sales (though some ecm recordings have) but you can bet that the work will be on torrent sites. There are probably a torrents of the entire ecm catalog.

        But back in the 70s this stuff wasn’t that niche, its is stuff you’d find in high street record shops. HMV, Spinadisc, Virgin.

      • David Newhoff says:

        And that’s sort of what I’m driving at — that mainstream was more diverse. And ECM makes my point about the business model. An indie label invests in less predictable works by spreading its bets across several products and aggregating modest returns. It’s a slight variation on the business model of a large label banking on mega-hits.

      • @Anonymous

        “Then they’d pirate it. Some, in order to save money. Some, in order to keep a copy for later use, rather than having to stream it (particularly useful if you want to watch it on a mobile device and not blow through your data plan). Some, because they’d find it more convenient that way. Some out of principle.”

        Agreed, which is why there would have to be strict control over release just like movies and to a greater extent console games. As you and I have both stated, creators aren’t selling their work, they are selling a performance. What digital distribution needs is a means of retaining control over that performance (to whatever extent is possible, there will always be bootlegs) as long as possible post release.

        Consider something like Pandora or Spotify. How do those things combat piracy? Because contrary to what some believe, they can be an artists best weapon, so long as it is understood that you are not selling a product, you are licensing performance rights. Be it in signing a record deal, using a streaming service, setting up shop in iTune, or licensing those rights to a consumer at $9.99 a pop. Putting a sales embargo on works, while granting access to license holders(at the consumer level) engages the consumer in a way that makes piracy kind of pointless.

        What people want is control. The problem with most streaming is that you are presented material based on criteria or at random.

        Why did so many people use Periscope to watch GoT? Because they are dirty little thieves as Audionomics and others would have your believe? Or is it about knowing it is possible to experience the things they like on their own terms.

        So why not give them that option, legitimately. Create direct engagement. Some services already do this, to great effect.

        Imagine a service where you could stream anything you wanted, app, browser, external device, whatever. You could even archive a certain amount of music for offline usage. TV, Movies, Music, Poetry, Books, Podcast, whatever. What reason would you have to steal?

        Now consider that the creators were directly involved with their content. So instead of ad revenue and executive whim deciding the fate of a beloved show. Or what city an artist traveled to. It was the user. Still think the average person would want their shit for free?

        What people like Dewey are saying. What things like Periscope are providing is a glimpse into a better way of dealing with digital media.

        The consumer already dictates what gets made to a certain extent. They already push trends or at the very least make them actually mainstream. So why not embrace that. Instead of $200 million dollars to make something that “might” be a huge hit. Why not make the consumer part of the pitch process. Not quite as crazy as you would think. Crowd Funding is proof of that and some pretty amazing work, based on REAL interest and actual money directly from the audience is proof of that.

        No, the ideas are not perfect. But they are a hell of a lot better than the pissing and moaning done by some.

      • The consumer already dictates what gets made to a certain extent. They already push trends or at the very least make them actually mainstream.

        Flickr has Explore the so called top 500 photos of the day. Where top is decided by some algorithm based on how many peopel are looking at the image, adding faves etc.

        https://www.flickr.com/explore

        come back tomorrow and the photos will be different but the same. It never changes except slowly over time a few years ago it was predominately HDR processed images. You are going to get pleasant images there but nothing startlingly out of the ordinary.

  2. AudioNomics says:

    AV- “@Audionomics, who’s facts are you referring to? David’s interpretation of what she wrote does not constitute him being privy to “the facts”. As you said, he IS editorializing.”

    And you just proved my previous point … that David ISN’T the newspaper here… a blog IS editorial. I think that whole point went sailing directly into the stratosphere…
    Why don’t you go take a minute and learn the difference between editorials and news…ill wait.

    • David Newhoff says:

      And I remain confused as to why anyone thinks my post criticizes Caitlin Dewey for having an opinion. Quite the opposite. My post criticizes her for neither having a clearly stated opinion nor reporting straight facts. There’s a reason I single her out in this manner. To be blunt, I think she very much has an opinion, but is pretending not to. Whether she realizes it or not, writes sarcastically, and sarcasm is often a very dishonest form of expressing an opinion. Anyone who’s ever been in a committed relationship knows this instinctively. 🙂

    • “To be blunt, I think she very much has an opinion, but is pretending not to.”

      @Audionomics – That is the point you are missing. His interpretation of her writing is the basis of the post. He thinks she was saying X, she was actually saying Y. That is the core of the debate.

      Pointing out how the landscape is changing is not the same as picking up a shovel with digging in mind…

      • AudioNomics says:

        whatever, the title of the blog is what, again?
        People seem to be (and from every study ive seen recently, are actually) less informed these days than ever before. the illusion is that “more” information is better, when accuracy is what actually counts. Contributing to the mass confusion, headline skimming, suck-up-click-bait clickers does not an informed public make.

      • And why do you think I reply to this blog? Because that is precisely what people like you and David are doing in regards to almost every opinion regarding technology that does not fit your bullshit narrative.

        Technology is a tool. There is no “illusion of more”, only use and misuse of things that do in fact make the world more connected than every before.

        Rather than shout down any opposing point of view, you generally ignore anything that does not support your idea of what is and is not happening in the world around us.

        I remember his “rebuttal” to her piece, the same comment section where she LITERALLY came in and explained her position. No matter what was said, no matter who responded explaining the point of her article, including the author herself, people like you and David would hear none of it.

        The only illusion here is the one where people like you and David pretend to have insight, to be interested in advancing a discussion. You do not. You literally, and yes literally just was want to complain. To whine about things you seemingly choose not to understand, no matter what information is presented to you.

        You are the problem. Rather than work on solutions, you sit back and bitch, offering no true insight into how we can or should navigate these waters.

        I post here because people like you are woefully misinformed in regards to what the problem with technology actually is and the best ways to combat that problem.

        I post here to try and break your self imposed delusion of less.

      • David Newhoff says:

        Dude, if all this blog does is complain, spitting into the wind as it were, then what is the value of complaining about the complaint? Also, I did not ignore Caitlin Dewey’s response, but she’s full of shit. She writes like a child and is playing games, and if you can’t read that in her writing, then you need to read more good journalism and editorial out there as a comparison. I would challenge her to have an actual opinion or to just report, but she does neither. Moreover, if you feel the problems with technology are misunderstood and that you see solutions, then publish those ideas somewhere. Surely, you must know that most visitors to this blog read my articles and not the comments, so publishing your own ideas would be far more effective if you’re really try to propose your own solutions. Barring that, though, I can’t imagine expending energy criticizing something you describe as futile.

      • I am not complaining about the complaint. I am trying desperately to get some of the good ideas pointed in a direction of progress. As I have said, you thoughts are an important piece of the puzzle.

        I have considered doing just what you suggested, and perhaps I will, but regardless of what you might think I find these debates fruitful for a variety of reasons, not the least of which as a means of refining my own ideas on the subject as it is pertinent to me and the music I produce.

      • David Newhoff says:

        I’m glad you feel that way and appreciate it, and that’s the blog’s purpose — to provoke thought, not to be right about everything. And certainly not to complain for the sake of it.

      • AudioNomics says:

        A) you don’t know me, AV, and what I do or don’t do… ive talked directly to Representatives this year, licensed music to film, TV, companies and bands.. what have you done? bitch and moan that I “don’t get it”? answer the same lines no matter the questions posed? Maybe that’s why you keep getting the same responses…

        B)GoT is indeed pirated because people can get away with stealing it. I like HBO programming and think it’s worth the premium, so I pay for the channel (and thus subsidize the leeches) I can watch anything HBO At ANY time on ANY device… because I pay for HBO. if a pirate uses that tired line you just used, it’s because they haven’t even looked at the option to legally pay this decade. it’s not about convenience, it’s about being a cheap bastard who doesn’t understand civic and societal duties.

        C) “you generally ignore anything that does not support your idea of what is and is not happening in the world around us.”
        Speak for yourself… I tend to ignore ignorant rantings by anonymous commenters, yes. I have a good grasp on what I see in my everyday life and business, you know different? That’s a good trick… maybe you should speak from your point of view and not from mine…

      • And you don’t know me. I have no need to get into a pissing contest with some random guy in blog comments whose claims and ideas are no more valid than anyone else’s. I work in the tech industry, I make my own music. I have been doing both for many many years. So when I say your ideas are off base, that very well may be MY opinion, but it is no less valid than the nonsense you like to spew.

        b.) As always your thoughts on the subject are based on assumption and has no bearing on the habits of the average consumer who will in fact as evidenced by the services that thrive based off of their participation will pay for legitimate content when given a choice.

        C.) And as stated above maybe you should base your assessment of the average person on something more than your incessant need to decry technology. So instead of whining about piracy all the live long day, maybe, just maybe, since you are a veteran content producer with connections to the TV and film industry you could work the problem from a different angle for once, looking at how technology can be used to eliminate the source of your consternation.

        You don’t get “it”, because what you think of as the problem is only a symptom. What you don’t understand has nothing to do with how things are working but rather how they could work by embracing future instead of clinging to a system that was never all that great in the first place.

      • AudioNomics says:

        AV- “You don’t get “it”, because what you think of as the problem is only a symptom. What you don’t understand has nothing to do with how things are working but rather how they could work by embracing future instead of clinging to a system that was never all that great in the first place.”

        oh, I didn’t realize that paying for a vanity CD made you an expert in the music business… I wrote a ‘hello world’ in C++… but I’m not going to constantly tell you how to do your job, now am I?

        And who is “clinging to a system”?? I’m looking to the future that’s more equitable… unless you call “getting paid” a “system that was never all that great..” . in which case you might as well talk to someone else.

      • “oh, I didn’t realize that paying for a vanity CD made you an expert in the music business… ”

        Neither is rocket science. And I don’t recall claiming to be an expert. “Vanity CD”, that’s cute. LOL, as I said, you don’t know me, so whatever.

        Regardless, none of this is all that complicated. I understand that thinking it is makes you feel better about whatever it is you actually do, but there are people, who make a lot of money, producing music in their basement, with no input from anything that has to do with “the industry”. That happens every day. There are people who crowd fund movies, who create art, who are using technology to not only get paid, but to also expand their audience.

        More equitable? You make work, you set price, people like work, you get paid. How much more equitable does it need to be?

        “But…rabble…rabble…rabble…rabble…rabble…rabble…rabble…rabble…rabble…piracy?”

        Thieves aren’t customers, worry about your customers first, deal with thieves as you see fit.

        And finally, what aspect of the business do you feel is so ridiculously complex that a lowly “hobby” musician couldn’t possibly understand? What aspect of contract work do you think is beyond a graphic designer? Developer? Software engineer? Please enlighten me on the mysteries of creating a product for sale.

        You have expressed nothing that justifies your arrogance. Nothing. If you do indeed work in the industry, put up or shut up. No, I don’t care to know about your resume.

        What I want, is for you to explain exactly what you think is so difficult about creating content for a living. Explain to me how you are owed anything for creating work that was not specifically contracted by someone with a set price in mind.

        You can ignore my posts if you like. Not going to bother me one bit. You can continue to be an asshole, and while that is irritating, I am not going to lose sleep over it. Or, and I know this may be tough, you can actually discuss the topic from multiple points of view and realize there are many paths to achieving your goal of an equitable future.

        That choice is yours.

      • AudioNomics says:

        AV- “More equitable? You make work, you set price, people like work, you get paid. How much more equitable does it need to be?”

        This is what I mean… I am not allowed to set my price. The government is protecting multinational mega-trillion dollar tech corporations against little ol me. As a songwriter, I am not allowed to “set my price” hell in most situations, I’m not even allowed to say ‘no!’… only in ONE specific senario am I allowed to set a price (and the tech lobby is pushing hard to destroy that too)..

        I thought my post might hit a nerve, (to be honest that was the intent at this point) as there isn’t a dialog anymore. I’m sick of talking past one another, as you will surely respond to things no one said, and ill try and correct your misinformation for the umpteenth time, and it will go in one ear and out the other…. LoL, you don’t happen to work for Pandora, do you?

        AV- ” “Vanity CD”, that’s cute. LOL, as I said, you don’t know me, so whatever.”

        hey, you admitted this several times… I’m just going on what you say… A ‘vanity project’ is a real term used by engineers..

      • Holy shit, you actually answered a question, color me amazed.

        Are you suggesting that tech has driven the price down and therefore you can’t charge what YOU think your work is worth? Otherwise I am not sure what stops you from selling your work at whatever rate you choose to whomever you choose. Assume, for a moment, that the only people who are customers want to buy your work, they WANT to pay. Who is setting the price you charge in that transaction? The market via competitive pricing? How is that different than me selling graphic design based on what the going rate might be? No I don’t set my own price completely, but I am choosing to follow market standards. But just because there are a multitude of simple clip art programs that mean most people can make basic logos and essentially duplicate the job I would do for X amount of money(high end stuff is not the same as basic design), that doesn’t mean I am powerless.

        Please, by all means, correct my “misinformation” as you have never done any such thing. You have presented an alternative opinion, but you have never actually addressed the effect of a free market and unending competition has on creators. You make a lot of claims about how technology is enabling theft and/or driving the price down, yet you ignore the demand that created a much more crowded space and an industry(Labels, studios) that pushed for this technology with NO regard for independent or smaller artists. You continuously ignore, “tech is a tool.” How is used is not indicative of the intent of its creators any more than lyrics you write being misinterpreted are your responsibility to correct. You can clarify, but you are not obligated to do so, and you are not less of an artist by choosing not to. Technology is art as well, whether you believe that or not is up to you, but they are creators, whose work is exploited constantly for good and for ill.

        And as for your use of the term “vanity project”, that phrase is used, by a lot of people, with no real definition. However most interpretations are in regards to something frivolous. And as I said, you don’t know me, or my band, or the work we produce/.

        There is nothing frivolous about spending 6 months to a year writing and fine tuning our work, and another 6 months to a year recording. There is nothing frivolous about having another artist interpret each song as an art piece and sum the who album up into a separate work of art. Our fans don’t find that frivolous. The guy who painted for us did not find his work to be so. I am sure there are people who think of a vanity project as anything that was done without the sole purpose of sales, and that is a valid definition as well. But that sure as hell was not your intention in using the term.

        And it very well may be something we are doing to fulfill our creative need, it very well may be just a means of expression, but it was in no way without purpose and it certainly was not simply because we can.

        You often take a condescending tone as you are apparently a “professional”. That is fine, however, I am an artist, my work is more than a paycheck and were I to present your work to other artists like myself on that fact alone, I seriously doubt you would garner the respect you apparently believe getting paid by some marketing douche based on pre-defined parameters deserves. My point? Selling something does not make you an expert. And creating something does not mean someone wants to buy it. Oh, they may very well want to look at it. They may want to hear it. But people like and listen to lots of things they would never buy, that ain’t stealing. Most artists I know, in all mediums are happy to make money from their work, but they sure as hell don’t create it for that purpose.

        So if you are suggesting you are more talented/professional(you may be who knows) because you are a gun for hire, I would say that depends solely on your actual talent and very little on what you can sell and how you do it.

      • AudioNomics says:

        my mentioning that this is what I do to put food on the table has zero to do with anything other than to maybe catch your eye to the fact that I might know a little about what I keep repeating to you.. I think it’s great that you are an artist too… more power to ya. Now open your artist ears and listen: MUSIC IS NOT A FREE MARKET. These traditional market forces you keep hammering on have nothing to do with the music biz for a large part, and that’s what I keep trying to tell you. I get pissy only because im sure I’ve said the same lines over and over in a hundred posts by now, and you swerve right around that important fact like it’s not there.

        Since I’m sure David is sick of looking at us bicker I’ll leave it at that. I apparently can’t educate you nor inspire you to look deeper on the subject, so I’ll say … there is this ‘tool’ out there where you can research the subject on your own time. Have a nice day.

      • I don’t know if you are interested, but here is a final thought. It is as objective as I could possibly be on the subject. Otherwise, I do wish you the best in your work. Contentious or not, we are both artists after all.

        “MUSIC IS NOT A FREE MARKET. These traditional market forces you keep hammering on have nothing to do with the music biz for a large part, and that’s what I keep trying to tell you.”

        Then why are you trying to solve the problem of artists compensation by treating your work as if it were a normal good or service?

        In doing some reading(as suggested) I found this essay from July of 2000.

        https://futureofmusic.org/article/economics-recorded-music

        Fascinating stuff if you care to take a look. Here is the summation, though the entire piece is a good read IMO:

        “These guidelines, based in economics, represent the beginning, not the end to this discussion. Clearly, the process of understanding music as a product is somewhat distasteful. But understanding it as a special type of good, one whose value is not measured adequately in dollars and whose exchange should not be left to a market without some special rules, is very empowering. It can frame the discussion and define the search, as everyone who loves music scrambles to imagine a way in which both the artists and the consumers can always get what they want. Despite Mick Jagger’s claim to the contrary, I think it can happen. And, I suspect, so does Adam Smith.”

        Many if not all of the suggestions and observations I have made in regards to addressing this issues faced by content creators are centered around the idea of changing the way in which compensation is given, not because I think stealing is a good thing, but rather because I don’t believe you can assign value to these works based on the effort of the creator. Hence statements like, “it does not have value simply because it exists”. This in no way means that I think your efforts should be plundered for profit by someone else. Nor does it mean that I view creating content for sale as inherently less artistic than doing so purely as art. I don’t.

        But there has got to be another way. 15 years ago, the person who wrote the linked essay knew it. He could not have spelled out the future any better if he had a time machine. And I think there is a lot of merit to looking at the problem not from a technology standpoint(tech is a tool after all), but purely from an economic position. What is the IDEA worth and how do you translate that into profit for the creator. Forget the MP3. Forget the CD. The album. You can’t control those things, once sold, stolen, given away, whatever, they are beyond yours or anyone else’s control.

        So the solution has to come from selling the IDEA, not the copy. That has to have a set value. And it has to apply regardless of who comes up with it. Otherwise there is always going to be Periscope. Napster. Spotify. Whatever, and no amount of lobbying or legislation will stop them because they are what the market wants. So step back from those things and focus on bringing what the artists needs in line with the consumer.

        I advocate for real solutions to the problems that face ALL artists, big and small. Nothing more, nothing less.

      • AudioNomics says:

        Here’s a great post from Lowery (as written to the DOJ) That does a good job of overview (one could write an entire book [and some have] on the bs that happens in this particular industry).

        http://thetrichordist.com/2014/08/06/the-consent-decrees-violate-individual-rights-my-comments-to-doj/

        I apologize if I was offensive before, I don’t think were far off in viewpoint… just that us songwriters and artists have been under such a constant barrage of attack from all directions for so long ….that the default setting gets stuck on autofire. have a nice day.

  3. Anonymous says:

    David,

    The legal uncertainty here that makes Periscope, as Dewey writes, a “challenge” akin to the VCR, is the question of whether Periscope is liable for the actions of its users, not whether the users have committed infringement. It’s obvious that the users live streaming “Game of Thrones” are infringing on HBO’s public performance right. It has nothing to do with reproduction vs. public performance, and everything to do with whether or not a service/product manufacturer can be held liable for the actions of its users.

    Unlike services that host content that has been uploaded, Periscope allows users to livestream, thus it is unclear how much of a right and ability they have to supervise. In other words, unlike services that distribute content, this service allows users to stream the content live, so there is not necessarily a record of infringing activity past when the performance takes place, thus it is not clear whether Periscope would have enough time to both be made aware of and respond to the infringement. This is a necessary element for finding vicarious liability. It is additionally not clear whether Periscope has a direct financial interest in exploitation of copyrighted materials, which is another necessary element for finding vicarious liability. Unlike services like YouTube that monetize specific content, and clearly get most of its traffic from people viewing copyrighted content, there are lots of other possible non-infringing uses for Periscope that make more sense, based on the nature of it being over social media as opposed to a file-hosting site specifically, e.g. sharing footage from your birthday party, filming a clip of your kid to share with your followers, etc. Before finding on this element, there would need to all types of evidence regarding percentage of infringement, Periscope’s revenue and business model, etc. – basically the same types of evidence that came out in Viacom v. YouTube. Further, because of the nature of live streaming, it may be harder to prove that Periscope has knowledge of the infringing activity, since it may not know about it until it’s already happened. Keep in mind that “constructive knowledge” of infringement is insufficient where the product is capable of substantial non-infringing uses (this is directly from the Betamax case, hence why it’s relevant here). Additionally, to find Periscope liable for contributory infringement, HBO would have to prove that Periscope “induces, causes, or materially contributes to the infringing conduct of another.”

    To be clear, I’m not forming an opinion either way on whether or not Periscope may be liable; I’m just pointing out several of the factual issues that have not yet been resolved, and which will directly determine any legal outcome. Because there hasn’t been much fact-finding yet, it’s not clear how Periscope can and will be held liable as of yet. Prior to Periscope, pretty much all cases of secondary liability hinge on whether a service is secondarily liable for reproductions made by users. The fact that Periscope is a service predicated on users live streaming, potentially infringing a public performance right as opposed to the reproduction right, is EXACTLY why Periscope presents a new legal issue that may present a new kind of challenge, just as the VCR first did. It will be very interesting to see how it would play out.

    And I’m not going to get into issues of transformativeness yet, because the issue is whether Periscope, not its users, are liable, so there’s no point in going into some type of fair use analysis based on what users do.

    • David Newhoff says:

      Thanks, Anonymous. And yes, the question of Twitter’s liability I realize does relate to Betamax. And it’ll be interesting to see how this unfolds. Everything you say is right, of course. And it’s too soon to say how Periscope and its use will evolve. At the moment, it’s a pretty clunky way to rebroadcast, but it may not stay clunky. But am I wrong in identifying time-shifting as the consumer-focused right afford by Betamax? Because I believe that’s what average folks think about when they think “VCR threat to TV” and not the business-centric matter of secondary liability. Going forward, we’ll see what comes. Periscope may be an opportunity for individuals to get themselves sued for infringement, while leaving Twitter alone, or it may not get used much in that way at all. But the moment someone rebroadcasts the Giants v Jets to 50,000 viewers, I’m betting we’ll learn a lot. I imagine Periscope (or its ilk) will largely be used in the social and private manner you describe, which suggests that Betamax has already ruled on the secondary liability issue, no?

      • Anonymous says:

        So, in terms of time-shifting, the Court in Sony found that Sony demonstrated a significant likelihood that substantial numbers of copyright holders would not object to consumers time-shifting their shows (the Court pointed to Fred Roger’s testimony in support of public television as well as other sources) and even in cases of unauthorized time-shifting, the Court held that home time-shifting was fair use because there was really very little evidence that it harmed broadcasters. Keep in mind that time-shifting was seen as very narrow (record a television show they already have access to for a later viewing and then get rid of that recording); it wasn’t some blanket license for consumers to record all the television they wanted and distribute or show it to third parties.

        That might be what the average folks think about when they think “VCR threat to TV,” but the important question decided (I think), the question that really opened the floodgates for technologies that contribute to infringement, was the question of whether Sony was contributorily liable for manufacturing and selling the home video recording devices. Because the VCRs were capable of substantial non-infringing uses, the Court refused to impute culpable intent on the part of Sony to induce copyright infringement, even if Sony knew that some users might use the VCR for an infringing purpose. This holding was pretty instrumental in allowing companies to sell products/services that could be used for infringement but could also be used for other things, and the company wasn’t otherwise inducing infringement. I think there would be a similar outcome against Twitter here, since Periscope is very much capable of substantial non-infringing uses, and as of right now, there’s really no other evidence that Twitter is trying to induce people to livestream copyrighted content, which would be dumb anyways because the quality is so crappy and I don’t think a legitimate social media company as large as Twitter would want to be associated with shaky off-color versions of “Game of Thrones.” So I think that’s part of why Periscope is a challenge, but additionally, the live streaming nature of the service makes it hard for rights holders to take steps to protect their content since by the time they may know about it, the damage is done.

        I agree that as soon as it is used to retransmit sports broadcasts, it may become a larger issue for rights holders, because as of right now, I just can’t see something like this being a legitimate threat that content owners should be worrying about when there are, unfortunately, so many easier outlets to get better quality pirated works.

        The one area that I think Dewey makes little sense is in discussing a transformative live streaming. For instance, time-shifting and live-streaming to show a private audience are clearly very different uses that affect different rights. Maybe that’s what you were getting at when you discuss the difference between public performance right and reproduction right? And while I had read your previous post regarding Dewey’s last article and disagreed with how you tailored your response to her, I do agree that in this case, Dewey is definitely editorializing a bit more.

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