ISSUE # 1

DOES LIVE STREAMING CONSTITUTE

INFRINGEMENT?
Published Article
Live streaming apps pose legal risks for users
Zach Miners | April 21, 2015
ComputerWorld Philippines

Apps like Meerkat and Periscope can lead users astray of privacy and copyright laws.

Live video is messy. It's raw, unedited, and with new mobile apps, it's now capable of
capturing many more people who aren't aware they're being recorded. And in some cases,
that can add up to legal problems.

Meerkat and Periscope aren't the first tools to offer live-streaming capabilties, but they
have captured attention due in large part to the ease with which they allow video to be
recorded on the fly, from a smartphone, and shared publicly on Twitter. Twitter owns
Periscope, while Meerkat is the indie player, a breakout hit at this year's South by
Southwest technology festival in Austin, Texas. And both are positioned to spawn a crop
of disputes, and even lawsuits, around alleged privacy violations or copyright
infringement.

Some of these apps' early users have transmitted videos from inside private homes as they
would with a standard webcam. But many others have used the apps in public places such
as city streets, or while attending events like concerts or sports games, or from inside
places of business. Before they hit "stream," not every user asks for permission from the
business, or from every other person they might record during the live broadcast. In the
process of broadcasting, snippets of private conversations, copyrighted material, and
other incidents may inevitably be picked up.

"The immediacy changes things," said Kerry O'Shea Gorgone, an attorney and expert in
social media and marketing law, who hosts a weekly podcast on such matters. With other
video recording apps, users have a chance to review the footage before it goes out, she
said, but that is not so with Meerkat or Periscope.

In most public places, privacy laws typically don't protect people.

Those laws would apply to new live streaming apps like they would to other recording
apps, Gorgone said.
Whether in public or private, however, everyone has what's called a "right of publicity."
That means that any video recorded requires the permission of those shown in the video
before it can be used for commercial purposes, whether it be for a social media post or a
digital ad.

There don't seem to be any cases yet of brands running afoul of this on Meerkat or
Periscope. But some companies are already taking an interest in how they might be able
to use live streaming to their advantage.

If a company uses a live stream app in a public setting for a commercial purpose, and does
not obtain consent from people captured during the broadcast, those people would be
within their rights to sue the company, said John Delaney, an attorney at the law firm
Morrison Foerster who focuses on intellectual property and technology cases.

At least one company has found itself in hot water here, though not with live streaming.
Last year, actress Katherine Heigl sued Duane Reade after the pharmacy chain tweeted a
photo of her shopping at one of its stores without her permission. She later dropped the
suit after coming to a "mutually beneficial agreement" with the company.

Copyright infringement is another area of concern with live streaming apps. Last week,
HBO issued take-down notices to Periscope after people streamed the season five premier
of its Game of Thrones show.

Both Meerkat and Periscope forbid users in their terms of service from posting videos that
would constitute copyright infringement. Live streaming a network's broadcast of a show
would violate that rule. But determining exactly what constitutes copyright infringement
as it relates to live action in a public setting is far from clear.

Courts have held that when a live event is essentially a performance of a work of
authorship -- like a theatrical production or a choreographed ballet -- it is protected under
copyright law.

But, "live streaming of sports games would not violate copyright as long as the games were
not following choreography, and very few are, one hopes," said Robert Brauneis, professor
of law and co-director of the Intellectual Property Law Program at the George Washington
University Law School in Washington, D.C.

So, under copyright law, this means you'd be fine live streaming a home run by Billy Butler
at an Oakland A's game, but maybe not Bray Wyatt during a WrestleMania match, which
is what Twitter cofounder Jack Dorsey did during that event in Santa Clara, California.

Still, event promoters and broadcasters may adopt their own rules on live streaming by
attendees during events, regardless of how the law applies to them. The NBA has decided
to restrict both reporters and fans from live streaming game action with apps like Meerkat
and Periscope.
Representatives from the MLB, NHL, NFL, World Wresting Entertainment and Live
Nation either declined or did not respond to comment on where they stood on live
streaming during events. Theatrical group the Schubert Organization simply doesn't
allow any video recording. The MLB, however, will reportedly "monitor" the use of such
apps during games.

Some might argue that the quality of mobile video taken with a live streaming app is not
high enough to warrant legal action by a copyright holder. "But just because the video is
bad, that doesn't save you from liability for copyright violations or invasion of privacy,"
said Gorgone, the attorney and podcaster. The video quality though may have a bearing
on how much the accused is required to pay in damages, she said.

Instead, what might save Meerkat or Periscope from liability -- but not the end user -- are
the safe harbor provisions of the Digital Millennium Copyright Act. This is what has saved
YouTube from paying monetary damages for copyrighted videos on its site, by arguing it's
nothing more than a third party hosting service for what end users decide to post. Under
the provisions, YouTube and others like it are required to respond promptly to valid legal
take-down requests from copyright holders.

But, as it stands now, videos on Meerkat disappear from the app after the broadcast. On
Periscope, they stay up for 24 hours. This gives copyright holders a narrow window to file
a take-down request.

With the new live streaming apps, "it's different from stored video, from the YouTubes of
the world," said Delaney. As a result, he said, "the copyright analysis will be different."

It's still early days for mobile live streaming: the apps aren't mainstream yet like
Instagram or Facebook. But some tech-savvy entertainers have already latched on to them
as a way to promote themselves and to connect with fans.

Jason Farone, a comedian based in Los Angeles, loves Periscope, and uses it throughout
the day to record himself. People from other countries sometimes watch his broadcasts.
Last week, however, he was kicked out of a Target store when he started live streaming
there, while chatting up random customers and workers.

"It was as if," he said, "I was pointing the barrel of a rifle at these people's eyes."
Sample Case on Philippine Setting

Rappler vs Bautista: SC allows livestream of debates

(UPDATED) In a 14-0 vote granting Rappler's petition, the Supreme Court stresses the
'public function of the debates and the need for the widest possible dissemination of the
debates'

Rappler.com
Published 4:07 PM, April 06, 2016
Updated 11:36 PM, April 06, 2016

MANILA, Philippines (UPDATED) The Supreme Court (SC) announced on Wednesday,

April 6, that it lifted key restrictions in the coverage of the presidential and vice
presidential debates, allowing media companies to livestream the events.

In a 14-0 vote during its en banc session in Baguio City on Tuesday, April 5, the SC granted
the petition of Rappler to stop Commission on Elections (Comelec) Chairman Andres
Bautista from restricting online access to the debates. (Associate Justice Estela Perlas
Bernabe is on leave and thus did not vote.)

The presidential and vice presidential debates can now be "shown or live streamed
unaltered in petitioner's and other websites subject to the copyright condition that the
source is clearly indicated," the High Court said.

This was not allowed in the first two presidential debates that were held in Cagayan de
Oro on February 21, and Cebu on March 20, with the Comelec and media organizers citing
the Memorandum of Agreement (MOA) as basis for the restrictions.

Interpreting the MOA differently, the SC stressed that the agreement, signed by Bautista
and 8 media organizations, including Rappler, "recognizes the public function of the
debates and the need for the widest possible dissemination of the debates."

In the resolution penned by SC Senior Associate Justice Antonio Carpio, the Court said:
"The political nature of the national debates and the public's interest in the wide
availability of the information for the voters' education certainly justify allowing the
debates to be shown or streamed in other websites for wider dissemination, in accordance
with the MOA." Justice Marvic Leonen issued a separate concurring opinion. (READ:
Comelec chair discriminated vs Internet-based media Leonen)

The Court added: "The freedom of the press to report and disseminate the live audio of
the debates...can no longer be infringed or subject to prior restraint," the Court said.
"Such freedom of the press to report and disseminate the live audio of debates is now
protected and guaranteed" by the Constitution.

Rappler CEO and executive editor Maria Ressa said, "We welcome the Supreme Court's
decision to uphold the freedom of the press. Because of this decision, all sites will now be
able to livestream the vice presidential debate on Sunday, April 10, and the last
presidential debate on April 24. This will allow viewers to watch the debates on their
preferred online platforms. We look forward to working with Comelec in the lead up to
the crucial 2016 elections."

Takes effect immediately

The High Court said that its resolution takes effect immediately due to time constraints.

There are only two debates left the vice presidential debate on Sunday, April 10
(organized by CNN Philippines and BusinessMirror), and the third and final presidential
debate on April 24 (organized by ABS-CBN and the Manila Bulletin).

In only partially granting the Rappler petition, the SC chose not to nullify the specific
provisions that Rappler wanted nullified in its suit against Bautista.

Rappler SC Media Briefing

The provision covered in the SC resolution is the following portion from the MOA:

Part VI (C), paragraph 19

o Online streaming. Subject to copyright conditions or separate
negotiations with the Lead Networks, allow the debates they have produced
to be shown or streamed on other web sites

The MOA, according to the SC, has "not reserved or withheld the reproduction of the
debates to the public but has in fact expressly allowed the reproduction of the debates"
subject to the condition that the source is clearly indicated.

Last February 21, ahead of the first presidential debate (organized by GMA-7 and the
Philippine Daily Inquirer), Rappler had filed a lawsuit against the Comelec chief.

Rappler pointed out that certain provisions in the MOA granted broadcast rights to the
presidential and vice presidential debates only to the country's biggest networks to the
detriment of all other media outlets, including the government-owned PTV4.

Aside from Part VI (C), paragraph 19, Rappler also questioned the following provision:

Part VI (D), paragraph 20

 o News reporting and fair use. Allow a maximum of two minutes of
excerpt from the debates they have produced to be used for news reporting
or fair use by other media or entities as allowed by the copyright law:
Provided, that the use of excerpts longer than two minutes shall be subject
to the consent of the Lead Network concerned.

These two provisions were not nullified by the Court, as sought by Rappler. But the Court
order in effect lifts the livestreaming restrictions imposed by the Comelec and media
organizers on the debates based on these provisions.

In filing the case against Bautista, Rappler said: "By discriminating against Rappler, its
constitutional right to equal protection has been violated. That the discrimination was
aimed at restraining Rappler's free press rights makes the violation all the more
reprehensible."

Media companies, including Rappler, had signed a MOA with the Comelec to mount a
series of national debates ahead of the May polls.

Rappler pointed out that "online news groups were excluded from the MOA in terms of
coverage and live video streaming rights a MOA Rappler signed based on good faith
assurances that access would be granted. That didn't happen." Rappler.
Related Articles published on the Issue on
International Setting
Legal Ins and Outs of Live Streaming in Public
By Sarah F. Hawkins
Live streaming has been around for a number of years. But until Meerkat and Periscope,
and now Blab, we didnt have a very portable way to live stream video. There was Google
Hangouts, which is a live streaming service, but the mobile app didnt really make it easy
for mobile and active use. You could record short video and share them, a la Vine and
Instagram Video. But there wasnt a viable option for being out in public, your office, at
home, or pretty much anywhere you wanted, and share audio and video of what was going
on around you.

For those who arent exactly sure what live streaming is, its basically the ability to
broadcast audio and video as it happens. Its like having your own channel. Any time you
want to go live you can.

As with any new technology or platform, there are bound to be legal concerns. Thats no
different when it comes to live streaming. When it wasnt portable, it wasnt as prolific.
Still there were legal issues with regard to trademark and copyright, but the learning curve
for the legal issues wasnt as steep since those using the live stream service were often
business people who had a basic understanding of these legal issues.

Now that live streaming is available to anyone in the world with a smartphone, the legal
concerns are much more relevant to the average person. There are so many great uses for
live streaming. The key, though, is that for commercial use there are significant legal
concerns. And even for personal use, the legal concerns should be taken into
consideration. While the somewhat fleeting nature of live streaming may make you think
copyright isnt much of a concern, there is nothing in the law that say how long a
copyrighted work must be used without permission or exception to qualify for
infringement. Add to that the ability to rebroadcast, or upload to a more static video
service such as YouTube, and the temporary aspect of live streaming goes away.

Key Legal Concerns With Live streaming

Copyrighted Content Meerkat and Periscope, as well as Blab and Google Hangouts,
have Terms of Service that prohibit users from violating the copyright of others. This is
part of the Safe Haven provisions of the DMCA and is more for their protection than
yours. If you, as a user, violate the copyright of someone then its on you, not them. This
means, of course, that using copyrighted music in the background would be a violation of
the TOS, in addition to any copyright. But there are other copyright issues that many dont
think about, such as the copyright of artwork, performances, written materials, and
architectural works. Incorporating a copyright work into your live stream exposes you to
liability you may not have intended. Ever wonder why on some TV shows the artwork on
the walls is pixelated? Its because its a copyrighted work and they didnt get permission.
Thats easy to do when you have the ability to edit. However, with live streaming there is
no ability to edit and if you infringe someones copyright there can be consequences you
didnt anticipate.

Commercial or Private Use if your live streaming project is for commercial use
there are a host of legal concerns. Not only are there copyright, trademark, and trade
secret issues to be aware of, but youll need to know about privacy laws, publicity rights,
loitering or trespassing, and location releases. If youve ever been out and have seen a
movie, video, or ad being filmed or shot you likely recall there being an area that was
cordoned off. They do that for a number of reasons, one of which is to make sure there
are no random people in the background. Its why when extras are needed for crowd
scenes or background they hire people. Because when you hire people you can get them
to sign away their rights to sue you. When it comes to trademarks and live streaming for
commercial use, you really do need to learn how to stay on the right side of the law. The
basic rule is that unless you own the trademark, it should not be visible in your live stream.
Of course, there are exceptions, but for the most part if youre live streaming for
commercial use avoid any third-party trademarks.

Location Concerns regardless of whether youre live streaming for personal or

commercial use, you have to make sure you have the right to be where youre filming. If
youre on your own property, that makes it simple. However, if youre in public or on
private property there are legal concerns to manage. On public property, youre likely safe
to use the property. Thats not to say you have an absolute right. For example, the street
may be public property but you cant obstruct traffic, the courthouse is public property
but there are limitations on what you can do, and your childs public school may be public
but they also have the right to limit your actions for the safety and security of others. For
commercial live streaming many cities require a permit, so think about your use. If youre
an influencer and your live streaming is sponsored you may have crossed into commercial
use and could be subject to those additional requirements. Trespassing and loitering may
seem like petty offenses. In todays world, though, youll want to be aware of these things.
If you need to get permission, its always best to get permission in writing. Keep in mind,
though, that permission to physically be on the property is not the same a release of rights
to use the property in your live stream.

Privacy and Right of Publicity This ties in with Commercial vs. Private use as well
as Location concerns. Privacy is the right to control information about you, regardless of
how its shared. The Right of Publicity is the right to protect your name and likeness from
being exploited for commercial gain. Sometimes these rights overlap, and other times one
exists while the other does not. You may not have privacy rights when you shop at your
favorite store, but they dont have the right to use your name or likeness for commercial
gain. Privacy and Rights of Publicity are state law matters, which adds to the confusion
because some states are more lenient than others. If you are broadcasting your live stream
from a public space, and are doing so for commercial purposes, you may find yourself in
legal hot water if you do not obtain consent from people who are captured during your
broadcast. This is a very broad definition of commercial, too. Dont just think of big
brands. Commercial purpose would include influencers who are being paid to live stream;
social media professionals who are live streaming to sell their goods or services;
musicians/artists/authors broadcasting in an effort to sell their goods or services; and a
host of other situations. If youre live streaming solely for personal use, your main concern
will be the privacy rights of others. Whether youre in a public or private setting, there are
a variety of privacy rights you need to be aware of. It makes sense not to live stream in the
public bathroom, but given the number of people taking photos (which Im going to
assume are selfies, because otherwise Ill freak out) in public bathrooms Im not so sure
everyone understands the privacy rights of a public bathroom. If youre at a public event
like a music festival, state fair, or marathon evaluate your surroundings so youre not right
in front of the port-a-potties. They may be in the public but there is an expectation of
privacy. And thats the magic phrase expectation of privacy. If the average person
would have an expectation of privacy, even if they are in public, then live streaming in
that area should be off-limits.

Disclosure For corporate brands on their own channel, its pretty obvious most of the
time since the brand isnt a person. Its more like an infomercial. But just like an
infomercial, there are FTC laws related to truth in advertising that need to be considered.
If a celebrity, influencer, brand ambassador, or the like is taking over the brands live
stream viewers needs to be aware that the person is a paid endorser. Same thing for
influencers. If youre doing a sponsored live stream, disclosure needs to be made. Exactly
how is not explicitly known. Like much of social media, the logistics of FTC disclosure is
a bit hit and miss. Ultimately, though, youre responsible for making sure viewers know
that what theyre watching is some type of paid content. Whether you call it sponsored,
advertorial, native advertising, marketing, or plain ol advertising it should be very clear
to the audience that the content is there because of a business relationship.

While live streaming is new, shooting video is not. Many of the same legal concerns
related to making a commercial video relate to live streaming. In addition to the above, if
your product or services is one that is regulated youll want to consider those as well. For
example, the FDA has requirements and limitations regarding claims for food, drugs, and
supplements. Various government agencies monitor claims related to the medical, legal,
and financial professions. And finally, dont forget safety. When live streaming in public
you may be moving around so be careful. And, of course never live stream while driving.

I hope this shed light on some of the legal concerns you should consider when live
streaming, especially for business. Live streaming can be a very engaging way to market
and sell your products, services, or business. But just like other aspects of running a
business, you need to consider the legal issue before starting your live stream.
THE LEGAL RISKS OF LIVE STREAMING
June 29, 2016 | Charles Bowen

Over the past year, live streaming apps like Periscope and Meerkat have become
extremely popular. Now even Facebook has gotten into the live streaming game. These
apps allow users to broadcast any event live using their smartphone. Not surprisingly, this
technology has raised a host of legal issues, primarily in the areas of copyright
infringement and privacy concerns.
While these apps ban users from posting content that violates others copyright,
trademark, privacy and publicity rights in their standard Terms of Service, these warnings
are often ignored. The first major legal battle erupted last year when hundreds of people
who purchased the Floyd Mayweather/Manny Pacquiao via Pay-Per-View live streamed
the entire television broadcast. Anyone rebroadcasting a live simulcast is committing
copyright infringement and can be subject to substantial fines.
The best approach in determining whether your broadcast is violating copyright law is to
simply use your common sense. If you paid to view the content, that content is likely
protected by copyright. If you live stream a movie in the theater, for example, you are
obviously violating federal copyright law. Similarly, live streaming a concert would likely
infringe on the copyrights of the artist, label, and publisher. Even broadcasting live
sporting events carries significant legal risks as networks pay large sums of money for the
exclusive right to broadcast games live.
Privacy concerns are a little more challenging from a legal perspective. The most
important factor is location. If you are in a public place, neither you nor the people around
you have a reasonable expectation of privacy. Anyone can typically take your picture or
stream video of you in public legally, provided they are not trespassing or going beyond
innocent recording to actually harassing, stalking or peeping.
One major exception is commercial use. You are not allowed to film others for advertising
or other promotional content without first procuring a release from that individual.
If you are not in public, however, live streaming is much more likely to be violative of
others right to privacy. Recording someone in a private place (such as their home, a
restroom or a doctors office) without their permission is generally illegal.
As a rule of thumb, the following rules apply:
(1) Do not stream any produced content that you do not own. This includes movies,
television, music, and other entertainment that is a performance of a work of authorship
and is likely subject to copyright protection. To do so will not only likely result in your
account being shut down, it may also subject you to a copyright infringement lawsuit.
(2) Do not use another companys registered trademark as a hashtag for your broadcast.
These are easily detectable and large corporations are typically very vigilant in monitoring
for the unauthorized use of their name.
(3) Respect privacy rights. Limit your live streaming of others to public places, and
procure releases if you are using the broadcast for commercial purposes. The safest
approach is simply to avoid streaming for business purposes from a public location.
Finally, there are also legal implications relating to the archiving of your live stream
broadcast. Although Meerkat does not currently archive its streams, Periscope saves
streams for 24 hours for unlimited rebroadcast during that time period, and Facebook
videos are permanently recorded to your story. That means that if the original broadcast
was illegal, you could be sued for multiple counts of infringing upon a copyright holders
reproduction rights.
Some users have tried to claim that the Digital Millennial Copyright Acts safe harbor
provisions should shield them from liability, but that law only protects the live streaming
service itself, not the actual broadcaster. That law, which YouTube constantly relies upon
to protect itself, states that streaming services are protected if they respond promptly to
rights owners takedown requests and dont have constructive knowledge of
infringement. But this will not protect you from an infringement claim if you knowingly
broadcast illegal material.
Live streaming is likely here to stay, as it seems to be a perfect fit for todays smartphone-
carrying, internet-connected world. The bottom line is simply this: be smart and use
common sense. Do not broadcast copyrighted material that you do not own, do not be
creepy and invade peoples privacy, and procure releases if you are using your broadcast
for business purposes. If you follow these simple rules, you will very likely protect yourself
from any potentially expensive legal claims.