From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events?

Abstract

On February 27, 2015, San Francisco entrepreneur Ben Rubin announced the launch of his live streaming video application, Meerkat. Named after “the cute but carnivorous mongoose native to Africa,” Meerkat allows users to upload video footage from smartphones to the Internet for worldwide, instantaneous viewing. In the weeks following Meerkat’s launch, Twitter unveiled a similar online application, Periscope, which allows users to watch live videos for up to twentyfour hours after their initial broadcast. Twitter’s more recent entry into the live streaming market has enhanced the credibility of this new technology. Furthermore, it has placed live streaming on the radar of major private equity firms. Although the American business community generally characterizes live streaming as a favorable technological development, the use of live streaming technologies to broadcast (or rebroadcast) commercial sporting events is more controversial. According to one sports network analyst, the advent of live streaming could potentially result in a “Napster-type thing” involving mass infringement of sports enterprises’ intellectual property rights. Another sports industry expert cautioned that “[t]his kind of technology is going to have huge [negative] implications for broadcasters like NBC, which has already paid billions for the Olympics.” This Article discusses the potential impact of live streaming on the commercial sports industry and analyzes whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events. Part I of this Article explores the history of live streaming commercial sporting events. Part II analyzes whether courts are likely to hold live streamers directly liable for their actions under federal copyright law. Part III discusses whether courts are likely to hold manufacturers of live streaming applications secondarily liable for copyright infringement. Part IV assesses the legality of live streaming under right of publicity law. Part V then analyzes the legality of live streaming under unfair * Professor Marc Edelman (Marc@MarcEdelman.com) is an Associate Professor of Law at the Zicklin School of Business, Baruch College, City University of New York. He is also a summer adjunct professor at Fordham University School of Law and a columnist for Forbes SportsMoney. Professor Edelman advises numerous sports businesses on a wide range of legal issues, including matters related to sports intellectual property. Copyright © 2016 Marc Edelman. EDELMAN, FROM MEERKAT TO PERISCOPE, 39 COLUM. J.L. & ARTS 469 (2016) 470 COLUMBIA JOURNAL OF LAW & THE ARTS [39:4 competition doctrines. Finally, Part VI concludes that current federal and state laws adequately address all meaningful public policy concerns related to the live steaming of commercial sporting events. Introduction 470 I. History of Live Streaming Technologies and the Live Streaming of Commercial Sporting Events 472 A. The History of Live Streaming Technologies 472 B. The Live Streaming of Sporting Events 475 II. Direct Liability for Live Streaming of Sporting Events Under Federal Copyright Law 477 A. An Overview of Federal Copyright Law 477 B. Federal Copyright Challenges to Live Streaming of Televised Broadcasts 479 C. Federal Copyright Challenges to Live Streaming from Stadiums and Arenas 481 III. Secondary Liability for Live Streaming of Sporting Events Under Federal Copyright Law 482 IV. Live Streaming of Sporting Events Under Right of Publicity Law .... 484 V. Live Streaming of Sporting Events Under Common Law Unfair Competition Doctrines 488 A. “Hot News” Doctrine 488 B. Common Law Copyright Doctrines 490 C. Idea Misappropriation Doctrine 491 VI. From Existing Law to Public Policy: Why the Current Status of Live Streaming Adequately Addresses Societal Needs 491 Conclusion 493