Meerkat, a live-streaming mobile app that effectively turns a smartphone into a broadcaster, was the tech success story of South by Southwest. Twitter launched Periscope, a similar app, on March 26. Unlike YouTube, which ingests and stores videos, Meerkat streams only live video; Periscope and another service, YouNow, archive streams for 24 and 72 hours, respectively. But any instant live-streaming service comes with potential legal issues.
Public performance rights come into play here. Meerkat would need to acquire the proper licenses from ASCAP, BMI and SESAC to cover streams of live performances at concerts. The company may also violate record labels’ performance rights if a Meerkat user streamed a sound recording “like a DJ’s pre-recorded tracks at an EDM show,” says Bill Hochberg, an entertainment attorney in Los Angeles. More than music can be affected. Television broadcast rights could also easily be infringed. A live stream could circumvent NFL blackout rules that prevent a telecast from airing in certain areas, for example.
There are also rights issues regarding archived streams. Although Meerkat does not currently archive its streams, Periscope and YouNow save streams for 24 and 72 hours, respectively. As a result, archives of some streams could infringe on labels’ and publishers’ reproduction rights.
The Digital Millennial Copyright Act’s “safe harbor” provisions could protect the services from infringing performances and streams. This means streaming services would be legally in the clear if they respond promptly to rights owners’ takedown requests and don’t have what’s called “constructive” knowledge of infringement. But this presents a nasty timing problem for rights owners and the monitoring groups that often issue the DMCA takedown requests. A takedown request could easily result in the removal of an archived stream. But what about short-lived live streams not archived? It seems most any DMCA takedown request would arrive too late to do stop or limit the infringement.
Proponents of Meerkat may use the fair use argument that has been applied to for everything from file sharing to sampling. “Just because something is in common usage does not necessarily mean that it is legal,” says Scott Sanders, an entertainment and intellectual property attorney in Atlanta. Fair use shouldn’t work for a couple reasons. First, a Meerkat stream isn’t transformative by adding value, aesthetic or meaning. It’s simply a broadcast. Second, there could be market harm if a recording, performance or broadcast is reproduced. The NFL example is especially applicable here.
Privacy could be the trickiest issue. A live-streaming app invokes the same privacy concerns at Google Glass, the now-shuttered and widely despised eyewear that recorded video and took pictures. Meerkat could be more problematic. A person can be streamed without his or her permission before a request for privacy is respected. At least the Google Glass — essentially camera-mounted headgear — was conspicuous. An app like Meerkat uses the now-ubiquitous smartphone taken into all sorts of private and social settings.
Copyright issues may get worked out soon enough — at least with Meerkat. The company’s investors include large talent agencies such as WMA and CAA, the venture capital division of Saturday Night Live producer Broadway Video, and actors Ashton Kutcher and Jared Leto. That’s an investor group that respects intellectual property.
The live-streaming fad could die a quick death. Right now, however, it appears that only Meerkat is succumbing to Darwinian forces. Meerkat peaked at #140 on the U.S. iPhone download chart on March 20 but had dropped to #523 Sunday night after the launch of Periscope, which broke into the top 30. Promising yet oversold mobile apps have been known to underdeliver, but this new app-enabled voyeurism seems a good fit for today’s mobile device-carrying, Internet-connected consumers.
An edited version of this article first appeared in the April 4 issue of Billboard.