The Digital Millennium Copyright Act (“DMCA”) was enacted in 1998, at a time when the Internet was just beginning to flourish. Since then, services for creating and sharing content online have exploded beyond the market that existed seventeen years ago. For example, capacious and basically free file storage, streaming sites that host enormous quantities of video and audio content, and media-rich, content-driven social networks did not exist at anywhere near their current scale when the DMCA was drafted.
Yet all of those services have been scrutinized under long-standing copyright law and particularly the DMCA’s “safe harbor” provisions, which insulate certain online service providers from copyright infringement liability. And those services have, more or less, fit into the DMCA’s framework. In many ways, it is remarkable the extent to which the statute anticipated the primary technologies that would structure the online world.
In terms of livestreaming video services, one of the newer media technologies to have developed online, most users stream events that raise no copyright concerns: local newsworthy events, pets doing wacky things, marathon runs, and so on. But as more users livestream material that could fall under copyright protection, such as concerts or even movies, scholars and practitioners—and, of course, copyright holders—have voiced questions about how users’ livestreaming of various content should be approached under the law.
Do the DMCA’s safe harbor provisions apply to livestreaming video services that either do not store copies of streams, or store them for relatively short periods? It is tempting to say so, given livestreaming services’ apparent similarities to other video-streaming and content services that are obviously covered by the safe harbor. And at least one court has applied DMCA safe harbor analysis to a livestreaming service.
I. Livestreaming Video
Livestreaming video services, including services like Meerkat, Periscope, Livestream, and Twitch, allow users to broadcast and view video in real time. Livestreamers capture video with their personal devices, generally mobile phones or computers. The service broadcasts that video essentially as it happens. This is distinct from plain “streaming” services like Pandora or Netflix, which continuously deliver to users (hence “stream”) stored copies of their media, instead of offering users downloads of that media.
Some livestreaming video services keep copies of their users’ streamed videos for longer than the livestreaming period, but they do not generally keep them forever, as sites dedicating to video uploading would. For example, Periscope stores the videos its users stream for twenty-four hours, allowing others to view the video during that time.
These technical distinctions could be critical. A service’s handling of the copyrighted content at issue, particularly with regard to storage and transmission, governs whether it may take advantage of one safe harbor or another, or whether the safe harbors will be available at all. As explained below, the results of any DMCA dispute concerning a livestreaming video service will likely turn on these precise—and often unpredictable—factual and legal issues.
II. The DMCA Safe Harbors
The DMCA’s Section 512, also known as the Online Copyright Infringement Liability Limitation Act, sets out certain safe harbors that limit copyright infringement liability for certain conduct of qualifying online service providers.
- Section 512(a) applies to transitory digital network communications—that is, service providers that transmit, route, or provide connections for material through a system or network they control or operate will not be liable for infringement if users send (that is, distribute) copyrighted material over the system or network.
- Section 512(b) applies to system caching—that is, automatic caching activities such as a search engine saving a version of a website, or an ISP caching material for faster delivery to customers, will not create liability for reproduction of copyrighted material.
- Section 512(c) applies to storage of information “at the direction” of users—so insulating service providers from copyright liability for hosting or displaying material that was posted or stored by a user, not by the service provider.
- Section 512(d) applies information location services—meaning that services such as search engines, online directories, and indices are not liable for copyright infringement for locating, identifying, or linking to infringing material.
Notably, the Section 512(a) and Section 512(b) safe harbors provide for immunity as a general matter from monetary remedies under copyright law. The Section 512(c) and Section 512(d) safe harbors give immunity from monetary remedies only if the service provider responds timely to a “takedown” notice from a copyright holder as to specific material that is alleged to be infringing.
Congress recognized that the Internet was, in some sense, a giant machine for the reproduction, distribution, and display of copyrighted material—three of the rights within the bundle of rights protected by copyright. Congress also recognized that the development of the Internet would be hampered if service providers could be held secondarily liable for all such infringement—either as materially contributing to the infringement (contributory liability) or as being able to control and benefiting from the infringement (vicarious liability)—every time a user transmitted copyrighted material over a network or posted such material on a website, or a location tool linked to a such material. In order to encourage the growth of the Internet and strike a balance between the sometimes-divergent interests of rights holders and the developers of novel online services, Congress drafted Section 512 to provide safe harbors for many different technologies, knowing that the statute would need to adapt to the rapidly developing digital industry.
To a remarkable degree, the statute’s categories still capture much of the key conduct that allows the Internet to function. And to a remarkable degree, the safe harbors have allowed explosive growth of the Internet notwithstanding (some might say, in spite of) copyright law. But determining the applicability of the statute’s four safe harbors often demands careful factual analysis of the technology at issue.
For some situations, the application is straightforward. If a user posts an infringing video on YouTube, for example, Section 512(c) is clear that a party claiming the video infringes on its copyright cannot obtain monetary remedies from YouTube unless YouTube fails to remove the video after receiving proper notice under the DMCA. Does Section 512 similarly apply to livestreaming?
III. Applying the DMCA Safe Harbor to Livestreaming
While Section 512 appears to have kept up with the times for the most part, it remains unsettled whether its safe harbors properly apply to livestreaming, a technology that barely existed in 1998. Considering the rise in popularity of such services, more courts are sure to be confronted with the issue of whether those services may take shelter in a DMCA safe harbor when they stream material in which someone claims copyright.
A. Threshold: Section 512(i)
Multiple livestreaming video providers, and at least one court, have assumed that the Section 512 safe harbors apply to livestreaming videos.
First, providers must adopt, reasonably implement, and inform users of a policy to terminate accounts of repeat infringers. Relatively little applicable law has developed as to the standards for these requirements. However, as long as providers do not prevent copyright holders from gathering information, are able to respond to notifications of infringing material, and keep track of infringing account-holders, under current law a court is likely to hold that the provider fulfills the threshold requirement of having a repeat-infringer termination policy.
Second, the service provider must accommodate standard technical measures copyright holders use to identify and protect copyrighted works. One court has held that since the copyright holder could identify its copyrighted material on the livestreaming service, and the service did not impede that ability, the service met this requirement.
If a livestreaming video service satisfies both of these requirements, the court may reach the question of whether any of the potentially applicable safe harbors apply: specifically, Section 512(a) or Section 512(c). Importantly, whether or not a livestreaming video service stores livestreams after they end—like Periscope, as opposed to Meerkat—would affect whether Section 512(a) or Section 512(c) would apply to the service.
If the service stores no video (apart from buffering, which is itself most likely transitory), then Section 512(a) is more likely to apply because it specifically relates to transitory digital network communications. But if the service stores video streamed by users, then Section 512(c), which covers information residing on a service provider’s network or system at a user’s direction, would probably apply.
B. Section 512(a): Transitory Digital Network Communications
Section 512(a) offers a safe harbor for service providers that transmit, route, or provide connections for material through a system or network they control or operate. It also covers necessary transient or intermediate storage that is part of this work. Service providers seeking the Section 512(a) safe harbor must satisfy a definition of “service provider” unique to that provision: “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”
Showing that Section 512(a)’s safe harbor applies requires careful technical analysis: livestreaming video services that store streams for longer than the intermediate buffering and display periods might find it harder to make a case that they are mere conduits. As a preliminary matter, any service seeking the Section 512(a) safe harbor must establish that it qualifies under the narrow definition of “service provider” applicable to Section 512(a). The service may be found not to transmit digital communications “between or among points specified by a user,” because users of such services generally broadcast their content to everyone with access to the site, such that the user may not be found to have specified a “point.”
No court has addressed whether the point or points could simply be a site or service and its users at large, but conceivably, a livestreaming service’s transmission of a user’s livestream from the user’s recording device to the service’s platform, as specified by the user, could suffice.
In addition, under the Section 512(a) definition of “service provider,” livestreaming services must transmit videos “without modification to the content of the material as sent or received.” On one hand, courts have held in the context of Section 512(c) that processing material for transmission does not modify the content of the material.
Substantively, livestreaming video service providers must meet the five conditions outlined above—an unpredictable task, but not an impossible one. The first and second conditions, which demand that data transmission take place at the user’s direction without selection by the service provider, likely apply because the user selects the content and initiates transmission. In most cases, the livestreaming service will perform an automatic, technical role in hosting the stream and providing the means to view it.
The third condition, limiting how the service provider may select recipients of the relevant content, may present more difficulty if the livestreaming service selects recipients of the livestream through any means other than an automatic response to another user’s request. It seems unlikely that a livestreaming service would manually choose viewers for its users’ streams.
However, it is not easy to predict whether a court might find that certain editorial, design, or technical decisions in presenting content are non-automatic “selections” of recipients. Rendering a stream’s visibility either entirely open, or contingent on technical responses like registration or age-verification, may comport better with this element of Section 512(a).
The fourth condition, which states that copies of materials may remain on a service provider’s system or network only as long as “reasonably necessary” for the transmission of the materials, sets a strict but unpredictable limit on how long a livestreaming service can store a stream. The statute provides no guidance as to what length of time is “reasonably necessary” for transmission, but the answer to this question may depend on the nuances of a livestreaming service’s operation. Two weeks has been held to have been sufficiently intermediate to provide Section 512(a) safe harbor for a newsgroup service provider, so it is possible that the much-shorter lifespans of most livestreams would be sufficiently transitory or intermediate. But no court or legislature has yet defined how long is “reasonably necessary” for a livestreaming service to host its streams. Services that do not store streams after they end may fare better under this factor than services that archive streams.
Finally, livestreaming services may meet the fifth condition that material be transmitted “through” the service’s systems without modification because, as discussed above, video processing to effect streaming likely does not qualify as a modification of the material’s content.
Accordingly, there is little clear guidance for livestreaming video services seeking the Section 512(a) safe harbor. But services that do not store streams and render them virtually impermanent aside from real-time viewing, and whose systems are as automatic and user-driven as possible, may have a good case for this section’s application.
C. Section 512(c): Storage at the Direction of the User
The Section 512(c) safe harbor insulates service providers from liability for copyright infringement by “storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” A broader definition of “service provider” applies to Section 512(c) as opposed to Section 512(a): Section 512(c) applies to “a provider of online services or network access, or the operator of facilities therefor.” This definition lacks the “modification” limitation of the definition applicable under Section 512(a).
A service provider must meet three conditions to qualify for Section 512(c) protection. First, it must have no actual knowledge of the infringement. Second, it must receive no financial benefit directly attributable to the infringing material. Third, it must “respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”
Section 512(c) elaborates on this third condition with a series of notice and takedown procedures whereby copyright holders notify service providers of allegedly infringing content on their sites, and the service providers remove that content. As noted above, other provisions of the DMCA, including Section 512(a), lack these unique procedures.
Livestreaming video services may qualify for the Section 512(c) safe harbor, but as explained further below, the DMCA’s notice and takedown framework may not be well suited to all types of livestreaming video services. First, these services likely qualify as “service providers” under the broad definition applicable to §512(c) because they provide “online services or network access.” Second, whether livestreaming services offer “storage” of livestreams will depend on the specific service in question. Even if the service does not even temporarily archive streams, like Periscope does, different services may provide streaming video using technical means that might not always “store” that video on the service’s systems. As noted above, Section 512(a) may suit these services better. Third, case law suggests that automatic processing that occurs when video is livestreamed likely does not violate the “at the direction of the user” requirement.
Finally, and most critically, the notice and takedown provisions present livestreaming services with a practical challenge: Supposing that a copyright owner discovers an infringing livestream and gives notice, are livestream services even capable of complying with the notice-and-takedown provisions of Section 512(c)?
The statute requires “expeditious” action to remove or disable access to material that the service provider knows, actually or constructively, to be infringing. When considering what constitutes expeditious removal of infringing material, courts’ decisions have ranged from the same day to within a few weeks from the date the copyright owner sent a proper notice.
Moreover, livestreams’ content can change “mid-stream”—a livestream of a copyrighted film might switch to a livestream of a pet in a backyard. So a service provider would likely need to respond immediately to a copyright holder’s notification of infringing content to remove that content from its site—or there is nothing to remove at all.
For “static” media like a movie on YouTube’s servers, the host’s response will generally be to take down the media file; but for a livestream, the video playing in real time on the user’s channel is the only means of transmitting an allegedly infringing livestream. In that case, what is the livestreaming service to do? It could seek to use real-time technical means to stop the stream, or it could ban the user from livestreaming anything and even delete the user’s account. The former may be technically unfeasible, while the latter course likely is overbroad.
Do these unpredictable situations mean a service provider cannot comply with the takedown obligation—or that a service provider does not need to do so? It is not clear how the statute would, or should, be applied in this circumstance: the service might have a completely compliant notice and takedown policy, and satisfy all other components of Section 512(c), but its policy might have no practical effect because there is, realistically, not much opportunity for a copyright owner to take down the stream.
Further, mere institution of a notice and takedown system, plus expeditious action, would not completely insulate a service provider from suit even if that suit were based on certain material’s “storage at the direction of a user.” The service provider would still have to meet the other requirements of Section 512(c), namely a lack of actual or constructive knowledge of infringement, as well as lack of both direct financial benefit and the right and ability to control infringing activity.
IV. Conclusion
It may take years for there to be a clear answer from the courts on how the DMCA applies to various livestreaming video services. But the result is likely to shape the future of livestreaming. For instance, a broad ruling that Section 512(a) covers livestreaming video services would provide complete immunity from monetary liability based on a transitory video stream. A ruling based on Section 512(c) would make that immunity contingent on compliance with a notice-and-takedown regime. But as explained above, such a regime may not be feasible for rights holders or livestreaming video services, and making it available only for services that store streams could have an uneven effect on the market for services that tout impermanence as a feature.
One likely outcome, depending on the individual technical operation of the livestreaming service in question, would be that services designed to provide only fleeting, real-time streams would fit better under the broader safe harbor of Section 512(a), while services designed to store streams longer would be subject to the narrower notice and takedown regime of Section 512(c).
Finally, courts might lean towards applying the DMCA to livestreaming services simply because many livestreaming services are superficially similar to familiar video services like YouTube’s video-hosting service that clearly fall within a DMCA safe harbor. So, a court might ask, why should the technical details of a livestreaming service control application of a safe harbor, when that service functions similarly to so many services that availed themselves of DMCA safe harbors?
Judges may be further encouraged to take such a “realist” view of livestreaming services and the DMCA by the logic of the Supreme Court in American Broadcasting Cos., Inc. v. Aereo, Inc., which analyzed the copyright issue before the Court not by focusing on the details of the technology at issue but by considering the practical operation of the service from the point of view of users and copyright holders.
Meanwhile, what would be the practical effect of a livestreaming video service not being able to avail itself of any DMCA safe harbor? The service would not be immune from infringement liability, but it would not necessarily be liable, either. Rather, ordinary principles of copyright infringement law would apply.
To show direct infringement, a plaintiff would still have to show requisite volitional conduct by the livestreaming service, not just that users employed the service as part of their own direct infringement. And to show secondary infringement, a plaintiff would still need to show that the service provider materially contributed to the infringement (for contributory liability) or was able to control, and benefited from, the infringement (for vicarious liability). Still, reliable access to DMCA safe harbors would reduce copyright infringement risk for the burgeoning livestreaming video market.
As a practical matter, that is what appears to be emerging. Whether or not livestreaming technically fall within Section 512, both livestreaming services and copyright holders appear to be acting as if it does. This makes sense because—even if Section 512 had no actual application—employing a notice and takedown regime allows services a cooperative mechanism for allowing content owners to assert their rights and offers content owners a relatively efficient way to police live streamed content without regularly resorting to federal court litigation.
So we are likely to see an iterative process of livestreaming services and copyright holders creatively adapting the familiar regime of notice and takedown to the livestreaming environment. For instance, while livestreaming does not easily accommodate “takedowns,” some livestreaming services have begun to institute alternative responses to takedown requests such as temporary bans and three-strikes policies.
All this appears consistent with Section 512’s broad goals of encouraging development of new Internet technologies while seeking to respect copyright holders’ rights. So as more and more users stream more and more content through such livestreaming services, some uncertainty remains as to whether all such services can rely on the DMCA’s safe harbors for reliable protection from potential copyright claims. But as a practical matter, services and copyright holders may opt to live with some workable version of the familiar notice and takedown regime that has served the Internet for almost two decades.
Learn more about Bloomberg Law or Log In to keep reading:
Learn About Bloomberg Law
AI-powered legal analytics, workflow tools and premium legal & business news.
Already a subscriber?
Log in to keep reading or access research tools.