A New Kind of Internet Pirate

What's stopping people from using apps like Periscope and Meerkat to livestream video they don't own? Not much.

Meerkat and Periscope made livestreaming hip again—at least for a few weeks, before much of the hype died down. After all, both are tools for broadcasting what’s happening to the streamer in real time, which often means sharing the mundane goings-on of everyday life (think the Periscoping of fridges, for example) that can get old fast.

But livestreaming apps could be useful for broadcasting more than just fridges and daily experiences; they can show breaking news (as was the case on the scene of a seven-alarm fire in New York's East Village last week), sponsored events, or, to take it a step further, copyrighted material like TV shows and films. It's not an issue the apps have encountered yet—the low-quality video would make extended viewing experiences uncomfortable, and there are plenty more sophisticated ways people finagle illegal access to art—but as the companies behind the apps grow, users could potentially grant other users access to, say, premium channels like HBO, by opening Meerkat or Periscope, pointing the smartphone at the episode of Game of Thrones airing live, and streaming the channel. So what's stopping someone from doing so?

"Practically speaking? Nothing," says Rebecca Tushnet, a copyright law professor at Georgetown University. "There are very limited means to prevent this."

Those means include tracking down users who repeatedly post copyrighted material and shutting down their accounts. But usually when it comes to dealing with copyright infringement, the measures a company takes come after the content has already made it through. YouTube, for example, removes videos that include copyrighted material once it receives a Digital Millennium Copyright Act complaint. Then it notifies the user, leaving it up to that person to decide what to do with the removed video. In turn, companies holding the copyright can use tools like Content ID to find videos that include their copyrighted materials. YouTube even has a handy video explaining this entire process with puppets:

Part of this process is thanks to the long history of copyright issues that have cropped up with broadcasting and sharing content. In 1984, the Supreme Court case Universal Studios vs. Sony Corporation of America—popularly known as the Betamax case—nearly made it illegal to tape TV shows. (Justices deemed it legal as long as the taping could be considered fair use.) In 2001, Napster lost a landmark case over copyright infringement, as the court found the company stored the copyrighted MP3 files users were sharing.

Of course, Meerkat and Periscope are different: They let users livestream, not upload content after it's been recorded. And that “complicates these matters even a bit more," says Brenton Malin, a professor of communication at the University of Pittsburgh, "in that the streaming content need not be stored on the computer of a streaming user—making it still harder to track down assumed copyright violations.”

So what can Meerkat and Periscope do if a user streams copyrighted material and later catches the attention of the owner? They'll likely do what YouTube does: Remove the content if it's streaming, and notify the alleged infringer. For users who unwittingly stream copyrighted material (a TV showing a film in the background, a snippet of a song playing, etc.), the process would remain the same. “If you’re a startup like these companies,” Kembrew McLeod, a copyright law professor at University of Iowa, says, “you want to monetize, so you’re not going to ignore a takedown notice.”

Which is why both Meerkat and Periscope have clear guidelines in their terms of service addressing copyright infringement, and a spokesperson for Periscope confirmed the app will respond to user reports of copyright infringement. Below, the guidelines from Meerkat:

Meerkat respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us… We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Meerkat will also terminate a user’s account if the user is determined to be a repeat infringer.

“Meerkat’s value is in the conversation it creates, not in the content itself,” Meerkat's Community Director Ryan Cooley told me. “We’re a young company, so we fully acknowledge that we aren’t prepared for every single type of use case, but we’re flexible and we’re ready to take it on.”

Cooley says the app hasn’t found any instances of people livestreaming copyrighted content yet—and the company doesn't expect to see this happen too often. “It’s on our radar, but certainly nobody has complained and seen it being abused in that way,” he said. “Nobody has created a live experience [of watching a TV show] that's so compelling that somebody’s going to sit at home on their phone rather than go experience it.”

Besides, people have enough ways to get copyrighted material elsewhere without needing someone to point a smartphone camera at a television screen. As Tushnet, the Georgetown professor, points out, those who want to pirate episodes of Game of Thrones will likely and more easily find better quality versions of the episodes scattered online. That said, someone somewhere will probably still use Meerkat and Periscope to livestream shows or films.

"People are going to do this just because they can, because that's what people do," Tushnet said, "but I can't imagine [using a cellphone camera] is a pleasant way to watch something."