Live streaming is arguably the next big thing in at-home entertainment. Perhaps its growing popularity is a response to the isolation imposed by COVID restrictions, in which people were forcibly cleaved from in-person forms of togetherness and retreated to digital connectedness to scratch the social itch.
Or an expression of an ongoing trend in the United States (and other developed countries) toward self-imposed social and civic isolation, as first observed by Robert Putnam in the landmark paper Bowling Alone. But most likely, in the Hegelian tradition, the truth lies somewhere in the amorphous synthesis of the two.
Whatever it is – people are watching live streams more than ever. Twitch, one of the largest livestreaming platforms, receives more than 30 million visitors daily. And YouTube, the second most visited website on the internet, also hosts livestreams that accrue more than a billion hours in watch-time per fiscal quarter.
But when the content displayed within these streams is copyrighted, things get sticky.
Intellectual Property Law Basics
The goal of intellectual property (IP) law in the United States is to incentivize creation. IP laws can limit competition; therefore, protections are granted when the need to encourage invention supersedes the desire to cultivate market competition.
Intellectual property law consists of four main categories: copyright, patent, trade secret, and trademark. We explored these protections, and their application to digital assets, in a previous blog. But for the scope of live streaming, we are solely concerned with copyright laws.
Copyright law seeks to protect “original works of authorship.” Works are copyright protected the moment the creation is completed; these creations must be “fixed in a tangible form” and can be perceived “either directly or with the aid of a machine or device.”
This means – yes, TV shows, movies, books, music, and the like, are all protected by copyright law.
Digital Millennium Copyright Act
A short 14 months before the turn of the actual millennium, the United States was trying to grapple with copyright law at the onset of the digital millennium. And on October 12, 1998, Congress passed the Digital Millennium Copyright Act (DMCA), which came into effect on October 12, 2000. This legislation extended copyright law to satisfy the demands of the digital world while conforming to standards set by the World Intellectual Property Organizations (WIPO).
The DMCA criminalizes the unlawful production and dissemination of copyrighted works via digital technologies. And there was a need for this legislation. You may recall websites like Napster – the first peer-to-peer file-sharing site – that made downloading free media elementary. Or even the once-pervasive accessibility of technologies like CD and DVD readers/burners.
But the digital world has been cyclically burgeoning since 1998: each social media platform brings its own explosion. The act, designed initially with piracy in mind, has expanded in scope to include the use of copyrighted materials within user-generated content.
It was always unlawful for users of platforms like YouTube to upload copyrighted materials like movies. But it is equally unlawful for users to re-upload other users’ original content.
Both actions can result in a DMCA strike: when the copyright holder requests the removal of a portion of the infringing content or a complete takedown. DMCA strikes allow both actors to circumvent potential litigation while remedying the copyright violation within the platform.
But this system has its imperfections. As online platforms become increasingly meta, with users responding to or analyzing other user-generated content, where do we draw the line with the DMCA? And how do we protect creators who utilize copyrighted content from frivolous DMCA strikes?
There are limits to copyright protections. Enter copyright’s caveat: fair use. The doctrine of fair use permits people to use unlicensed materials within specific contexts, such as in education; criticism and critique; news reporting; and research; the usage of copyrighted materials is protected.
Additionally, the work should be transformative. But what it means for a work to be transformative is constantly evolving. There are two main factors of transformation: the work adds new meaning and/or creates new information and insights.
Lastly – time. The length of copyrighted content used compared to the length of the new content is relevant in fair use determinations. Ultimately, the less it is used, the more likely the new content falls within fair use.
But the story doesn’t stop there. In our next blog, we discuss how the tension between livestreamers and intellectual property law has played out in real life. If you are looking to protect your intellectual property, or know your limits with using copyrighted works, contact the IP attorneys at Richards Rodriguez & Skeith for expert legal guidance.