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.

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