We’re glad to bring to you a guest post by Simrat Kaur, discussing the piracy challenges that may emerge with live music streaming becoming a norm in the wake of the COVID-19 pandemic.
Simrat is a New Delhi based IP lawyer. She pursued her undergraduate law course from Rajiv Gandhi National University of Law, Punjab and masters law course from National University of Singapore. After having worked with leading Indian law firms (Anand & Anand and Luthra & Luthra Law Offices), she is currently practicing under the banner ‘The Endretta’. She does transactional and advisory work in the field of music copyright among others and has advised music creators, owners as well as music distributors or platforms on matters related to it. The views expressed in this post are personal.
Real-Time Piracy Concerns Emerge as Live Music Streaming Goes Mainstream in Wake of COVID-19
With the culture of music festivals/ events having come to an abrupt halt in wake of COVID-19 social distancing norms; musicians/ DJs are turning to live streaming to keep their fans entertained and generate some income for survival. In March, world’s largest live streaming platform Twitch saw a viewership surge of over 30%, across all its content categories. American punk band Code Orange was the first one to live stream their performance from an empty venue (10k people watched the stream). Soon after, many others followed suit. As regards digital platforms, artists have many to choose from. There are a number of them with varied business models. While social media platforms like Facebook Live generate money from advertisements; Twitch works on both an advertisement and a subscription-based structure. And then there are some dedicated live music streaming platforms like StageIt, Nugstv etc. which live on ticketing/ a la-carte models of monetization. StageIt, in particular, has an interesting set of unique features. One, it lets performers decide the ticket price of their live events. Two, it does not archive videos of exclusively live streamed events for future access.
Though time will tell if the motivation for online live music survives post the pandemic or not, COVID-19 has successfully played the external trigger in generating initial public interest i.e. the first step in the process of consumer habit formation. If music-tech sector utilizes this time as an opportunity; and offers unique immersive experiences to viewers with the use of cutting-edge technology (extended reality – AR, VR and MR could be helpful); the interest will become a habit in no time. But, this supplemental revenue stream for music industry will come with a two-layered problem of piracy – a) infringing live streams (real-time piracy) and b) unauthorized uploads of recorded live streams on user upload platforms (UUPs) for on-demand viewing. Business models like that of StageIt which do not host recorded videos of their events would add to the appetite for stream ripping and unauthorized distribution/ hosting of ripped files. This is because pirates would see the lack of legally available recorded videos of these events as a business opportunity for catering to fans accustomed to time-shifted viewing and on-demand culture.
As far as the scope of infringement in a music live stream is concerned; in the absence of any basis for availing fair use exceptions like educational purpose, news reporting etc; redistributing it in real-time and/ or uploading the recorded versions thereof on UUPs technically infringe upon the entire bundle of copyrights subsisting therein – a) streaming right of the digital platform; b) performer’s right of the performer and c) the underlying copyright of the music composer as well as the lyricist. In case original live stream contains licensed recorded music, such acts would infringe the sound recording copyright too. Evidently, monopoly rights of music creators and distributors are pretty clear under law, but for enforcement thereof, advanced technology solutions and strong anti-piracy regimes are needed. And with live streaming piracy, challenges seem to be monumental on both the fronts – technology and law.
Ineffective DRM Technologies and Weak Anti-Circumvention Laws
Content owners rely on digital rights management (DRM) technologies to protect their content from unauthorized access and distribution. But DRM tools have not proved to be very promising. Every time, a new sophisticated tool is deployed, pirates find the ways to work around it. Plus, in the digital world, distribution is very easy. It takes just a few skilled people to break the DRM locks and disassociate the underlying content. Once they do so, unmanaged content is distributed online to millions of people, uncontrollably. To address this, US came up with Digital Millennium Copyright Act (DMCA) long back and criminalized DRM circumvention (See DMCA 1201 and US Copyright Office study report on this provision here); but the law faced heavy criticism for being draconian because it penalizes even those who circumvent for legitimate purposes. It is widely claimed that fear of conviction under DMCA has stifled tech innovation because it hampers security testing, encryption research etc. For the same reason, law in India is narrow in its scope and does not make circumvention a “standalone violation” independent of copyright (see Section 65A and B of Copyright Act). It does provide for criminal remedies against those who circumvent DRM, but intention to infringe is the essential element. Circumvention for acts covered by fair use under Section 52 like private use, research, education etc. do not invite liability. Further, unlike DMCA there is no liability for manufacturers/ providers of DRM circumvention technology which facilitates infringement. In other words, law doesn’t help in targeting traffickers. Going after each and every circumventor is the only option – but isn’t it cost prohibitive and almost impractical from an administrative point of view?
Timely Tracing of Offenders – Latency Concerns with Forensic Watermarking
Owing to the above reasons, preventing unauthorized distribution of the streaming content in the very first place is not easy, and the same goes for live stream content. Naturally, the next choice is to have the infringing streams blocked/ removed. In the streaming world, this is done by obtaining website blocking orders from courts; using “notice and take down” mechanism to have the illicit content removed/ blocked through intermediaries. But because of the real-time element; live stream music piracy is difficult to control as pirated videos have to be taken down while they are being streamed and not hours or days later. Further, tracking real time pirates and shutting them down is a technically challenging task. A paradigmatic example is rampant live sports piracy that sports broadcasters have been finding hard to fight against. Forensic watermarking, though not a silver bullet, does provide for a good tracing mechanism. Watermarks (i.e. signals) embedded in the content help in tracking the leaking source (IP address of the offender) and disrupting the illicit stream. But the deployment of this technology is resisted in case of live sports because it causes latency. It may be argued that, with music, latency should not be as big a concern as it is in the case of live sports because of low level of competitive excitement in music events. This is not true because with platforms providing for real time interactions, where viewers have the option to interact with the performer, latency of even 5 seconds could be problematic. Platforms would therefore, resist deployment of such technology, for fear of customer disappointment and subscriber attrition. Even in case of non-interactive live streams, competition would deter platforms from compromising with delivery time, if the live stream is not exclusive (i.e. – say five platforms have legitimate rights to stream).
“Notice and Take Down” Mechanism – Not Quick Enough to Achieve Live-Content Moderation
And when it comes to disrupting the illicit streams, intermediary liability regime of ‘notice and take down’ that we currently follow is almost dysfunctional and useless, because of the time factor. The idea of expeditious removal through human moderators is simply not workable when it comes to live videos. Considering the scale of content and the astronomical number of take down requests that moderators address, how quick can they be expected to be? There is a need to develop some effective technical solution to filter unlawful live content. Several instances of hate speech, violence and child pornography materials going live on platforms are thankfully pushing the intermediaries to put in efforts in this area. While research for developing advanced AI solutions to achieve real-time content moderation can continue, meanwhile, “shared blocking ability” system could be explored. Under this system, verified copyright owners could be granted “limited access” to “blocking mechanisms” of intermediaries so that they can disrupt/ block the illicit streams themselves without putting too much burden of removal on ISPs. This will assist in timely disruption of illicit streams. The concerns for over removal/ blocking, could be addressed through precautionary measures; punitive safeguards and quick administrative assistance. ISPs should be required to appoint a readily approachable team of human moderators to cater to false removal claims and reinstatement requests. Blocking right of those rights owners against whom an ISP receives more than five correct claims of false removal, should be terminated. Intentional abuse of the system to block competitors’ content etc. must subject offenders to penal sanctions (punitive damages and/ or imprisonment).
In order to generate enough value from live music streaming and maximize the flow thereof to music industry, piracy will need to be kept in check. And the reactive model of content moderation that we currently follow won’t be very helpful because of difficulty in timely removals. Giving some limited take down rights to copyright owners, seems to be a good option and must be explored. Also, in order to minimize stream ripping in the very first place, anti-circumvention law could be revised to incorporate anti-trafficking provisions so that distributors of jailbreaking technologies could be targeted. Lack of such provisions raise the cost of enforcement to a point that it renders such laws practically useless.