Periscope’s GrooveShark-Style Defence Hides In Legal Grey Waters

May 6, 2015 Ben Myers


On May 2 during the Manny Pacquiao / Floyd Mayweather fight, the Internet came to the startling realization that phone cameras could be pointed at TVs. The ensuing debate pitted two rival fighters against each other in that classic twelve round bout of old media vs new.

In this corner, weighing in at a limber 13 megabytes and pushing 1 million users, Periscope: the live-streaming video app that was lucky enough to be bought by Twitter during SXSW 2015 instead of the other one.

Twitter CEO Dick Costolo, appointing himself referee of both sports and media, raised his own arm

And in the opposite corner: HBO. A mammoth cable broadcaster with 28 million subscribers (plus pay-per-view revenue) and nearly 40 years of experience.

Viewers paid HBO around $90 to watch the Pacquiao / Mayweather fight. Imagine these viewers’ outrage if they had known they could have easily watched the fight for free.

Declaring A Winner

Well… as The Verge succinctly wrote on Sunday: Periscope Made It Easy To Watch The Fight For Free.

A few hours later, with HBO sprawled in the middle of the ring, bloodied by a sucker punch from Periscope, Twitter CEO Dick Costolo, appointing himself referee of both sports and media, raised his own arm:

And the winner is… @periscopeco

— dick costolo (@dickc) May 3, 2015

Sure, Twitter can claim that users of its app added unique perspective to the fight, and that people tuned in for commentary or a pre-fight insider view of Manny Pacquiao’s locker room, but there’s little doubt that HBO’s loss during the fight is Periscope’s gain.

Now, stretch your quads because the mental hoops you’ll need to jump through to side with Dick and Twitter could make Andrew Wiggins cramp up. It could only be a matter of time before lawyers are staring down Periscope into the grey areas of online streaming.

The Grooveshark Defence

Recently shuttered music streaming service Grooveshark tried to live in the grey area online copyright law, by allowing users to upload music and invoking the so-called safe harbour defence to say that it was, essentially, ignorant of what people uploaded using its service. It paid no licensing fees to record labels, and removed copyright-infringing material once it was brought to their attention.

Poster for the Mayweather Pacquiao boxing match May 2, 2015.

Poster for the Mayweather Pacquiao boxing match on PPV May 2, 2015.

On April 1, a judge ruled that Grooveshark was not entitled to the safe harbour defence. It was the knockout punch that Grooveshark had been dodging for years. Within a month (and $420-million in fines) the former darling of music streaming finally had to hang up the gloves.

So how does Periscope — legally speaking, its users — get away with not only broadcasting content it doesn’t have the rights to, but also backhandedly boast about it?

The short answer is there’s basically no law preventing it from doing so. Periscope doesn’t store uploaded content, it only streams things like NHL hockey games, shaky party footage and Game Of Thrones.

Future Pirates Take Note

HBO can report a copyright infringement to Periscope, and then Periscope will remove the stream and maybe even ban the user. Unlike TV, with multiple streams broadcasting the same major event, there’s always another channel to flip to.

Periscope has the plausible deniability of the safe harbour defence, plus the ephemeral nature of its content. Future pirates take note.

Commentators of the Internet were faced with a dilemma that pitted their hacker ethos against their business acumen like the aforementioned fighters staring one another down on a promotional poster.

Video piracy is the best use that has yet been found for Periscope.

Bloggers want to be on the side of disruption and innovation, and the Pacquiao / Mayweather fight pushed the boundaries of what users use their phones to broadcast.

However, with official apps from all major sports leagues now allowing paying fans to watch on their phones and tablets, the complaint that leagues or broadcasters are lagging behind technology is no longer moot.

The legal grey area is the womb in which many of the best ideas on the Internet are conceived. Indisputably, Napster begat the iTunes music store, which begat Spotify and its ilk. Torrents begat Netflix – or at least demonstrated the need for it.

As the ghosts of Napster and Grooveshark can attest, there’s no future for a service that depends on piracy and its legal team to keep it alive.

It’s hard to side with the people who want to take $90 from your wallet, but it’s even more difficult to rule that Periscope can remain ignorant that video piracy is the best use that has yet been found for it.

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