Israeli Judge: Watching Streaming Games Online Is Fair Use

from the wow dept

The entertainment industry has, in the past, accused Israel of not properly respecting copyright, but Israeli officials, rather than bending to the will of Hollywood lobbyists hit back with a long and detailed response, noting that its copyright law has already been influenced too much by American-style copyright law -- and just because they didn't go completely draconian and implement a version of the DMCA, it doesn't mean they don't have strong copyright laws. You have to imagine, however, that Hollywood's lobbying community is about to go ballistic after reading a recent decision (sent in by a ton of people -- including one of the lawyers involved in the case!) concerning an attempt by the Premier League to unveil the owner of a website, LiveFooty, that allowed people to watch streaming football (soccer for folks on this side of the Atlantic) matches.

Now, we've already covered incredibly aggressive legal strategy of suing any site that lets people stream its matches. Quite often, it goes after service providers rather than the actual users, and also goes after services in places where the games aren't viewable anyway (so it's not even taking away any real revenue). Either way, the judge in an Israeli district court was not impressed and tore apart the Premier League's arguments:

the Tel Aviv District Court ruled that it was a case of "fair use" since no profit was made from the broadcasts and that, in Israeli law, breach of "broadcasting" copyright only referred to cable or wireless transmission and not streaming over the internet.

The judge, Michal Agmon-Gonen, furthermore ruled that the site had important social aims -- "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it" -- and argued that those who view online were not damaging the revenues of broadcasters. She said they were mainly "those of small means or who are not sufficiently interested in sport to pay".

That's the report from the Guardian, but the full ruling from the judge gets a lot more interesting. In refusing to reveal the name of the owner of the site, she talked about the importance of not giving in to the chilling effects of copyright infringement claims, and the importance of setting a very high bar on such things:

"Someone who claims breach of copyright must meet two conditions. The first is to present prima facie evidence of a breach, that will lead with a high degree of probability to proof of it. Secondly, the breaches claimed must be especially severe, wrongs committed in aggravated circumstances," the judge said. This is because "unintentionally, millions of people infringe copyright every day; there are no grounds for disclosing their identities in such cases, but only when it is a matter of blatant and severe infringement."

As far as I know, this is the first time I've seen a judge highlight unintentional infringement, and the chilling effects of making it such that anyone needs to constantly look over their shoulder and be afraid that almost anything they do may be judged to be a violation of copyright laws.

The Premier League will certainly appeal, and you can bet that Hollywood lobbyists will soon come out with yet another report claiming that Israel is a "haven for pirates" or some ridiculous claptrap along those lines. One hopes that this thoughtful ruling that focuses on the public's rights will stand up and get recognized for recognizing that copyright isn't just about the rights of the copyright holders, but about the rights of the public too. However, given the history of the entertainment industry lobby, it seems unlikely.

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Premier League's Fear Of The Internet A Case Study In What Not To Do

from the this-is-not-a-good-idea dept

While we have many problems with the way MLB.com conducts itself concerning its attempts to claim ownership of factual information, you can't deny that (separate from that), it's built up a nice business by really focusing on giving fans what they want in terms of online video. While the product has had technical problems, on the whole MLB.com continues to improve it, adding many unique and useful features, such that it's actually well worth purchasing. If you order the package to watch baseball games, it gives you all sorts of neat tools that can't be found elsewhere, and are great for tracking pretty much any game you want. There are still some problems -- including silly blackout zones (so it's tough to watch local teams) and blackout times when games are being shown on national TV, but on the whole MLB.com has done a pretty good job making the service worth buying.

Compare that to the Premier League in the UK. It's been nearly five years since the league first started freaking out about people watching unauthorized streams online. But rather than trying to serve those underserved customers, the Premier League has repeatedly lashed out at anyone who might possibly enable these games to be seen online. For example, it's sued YouTube apparently unaware that the company is protected by the safe harbors of the DMCA, and (if anyone) it should be going after those who actually upload the games. It's also suing Justin.tv in the same misguided fashion.

Amazingly, the league seems proud of the fact that it's going after these companies, rather than the appropriate targets. Jeff T alerts us to an article in the Guardian which is basically a case study in what not to do about these things. It hypes up how the Premier League purposely goes after the platform providers, as if that's a good thing. It also (bizarrely) claims that these anti-fan maneuvers are somehow a different and better response than the way the music industry responded to unauthorized file sharing. But that's not true. While it's not suing fans directly, it's still suing to stop fans from doing what they want to do. It's the same exact mistake.

Rather than recognizing the simple fact that the reason fans watch these streams online is because the Premier League has failed to offer it up themselves, the Premier League seems to relish the fact that it makes it more difficult for fans to see its product. The article talks about the "Saturday blackouts" on video designed to get more fans to go to matches, without recognizing that such blackouts have been shown to be pointless. There used to be rules for baseball in the US that games that weren't sold out wouldn't be shown on TV, but eventually people realized that people weren't watching on TV as a substitute for going to the game, but because they love their favorite team and want to watch them however possible. The more they can watch them on TV, the more interested they are in seeing live games.

Jeff, who sent this story in, makes the point quite clearly, by noting that he watches poor quality streams of Premier League matches in Canada because the League refuses to make most of their matches available to watch online. Rather than going after the companies that run platforms that enable such things, there's a really simple solution: offer high quality online webcasts yourself, and actually serve the fans. But that seems far beyond the Premier League's strategic thinking.

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Sports Game Streamers Aren't Pirates, They're Underserved Customers

from the express-written-consent-is-for-schmucks dept

Like the leaders of many pro sports leagues around the world, the people who run English Premier League soccer are worried that the proliferation of sites that stream their games online will hamper their ability to get broadcasters to sign multibillion-dollar TV rights deals. Now the league says it's planning "an aggressive campaign to protect its intellectual property rights" to protect the TV deals. It's the usual stuff: more cease and desist letters, balanced with calls for governments to get more involved and for ISPs to become copyright cops. The article in The Guardian says that the league is "terrified of following the path of the music industry, which saw its business model collapse after it failed to combat digital piracy."

This is typical rhetoric, painting the recording business' problem to be inadequate technological and legal defenses against piracy. It's plainly obvious the issue for the music industry is the failure to adapt its business model to changing times -- and the same could be said for many sports leagues. While the leagues seek to crack down on streaming sites, their existence merely points out missed opportunities for the leagues and their teams to generate business. People don't choose to watch these streams instead of attending a game, or in lieu of watching a crystal-clear legit TV feed in a bar or with friends; they watch them because they're the only option. If piracy is as rampant a problem as groups like the Premier League suggests, it's not a problem -- it's a captive market upon which the league (and perhaps its broadcast partners) should capitalize.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Will Justin.tv Destroy Sports TV Rights Deals?

from the learn-to-serve-the-demand dept

Last month, Mike wrote about how the English Premier League was making threatening overtones towards Justin.tv, after it discovered some users on the site were streaming broadcasts of its soccer matches. It's the usual stuff from sports leagues, complaining that the sites aren't doing enough to stop piracy, and that their safe harbor shouldn't protect them, and that the DMCA takedown process isn't good enough. Now, a piece in The Guardian wonders if the large-scale piracy, along with a spending slowdown, will hit the value of TV rights deals when they come up for renewal, with broadcasters unable to justify the same level of spending should viewer figures fall.

This scenario isn't hard to imagine, but should it occur, it will be thanks to a lack of business acumen, not piracy. These sites exist, and thrive, because they serve demand untapped by the Premier League and its rightsholders. For instance, the rights situation means that in England -- where the league's based and its games played -- fewer games are broadcast on TV than in many places in the world. Here in the US, nearly every match is broadcast each weekend; just a handful make it onto UK TV screens. British pub owners tried to serve the untapped demand for this by buying satellite systems from foreign countries, but the EPL shut that avenue off in the courts. Likewise, users in the UK and elsewhere turn to sites like Justin.tv because they don't have other options. The match they want to see isn't available on television, or they're not near a TV set when the match is being played. I'd argue this drives use of the services much more than a desire for free content does.

The rights situation domestically in the UK is the way it is because of the long-held view that putting games on TV will hold down attendance; but the small stadium sizes and increasingly geographically distributed fan bases (along with high ticket prices) do this already. And indeed, the experience of other sports leagues around the world would indicate that giving fans the ability to watch their teams' games on television does little, on its own, to hurt attendance. That sort of view seems to color the entire TV rights situation for the Premier League: it tries to manufacture some sort of scarcity in an attempt to increase its revenues. But the popularity of sites that make broadcasts available online makes it clear they'd be better off answering this demand with services of their own.

Here's a novel idea: instead of trying to crack down on the likes of Justin.tv, why not require rightsholders to offer free streams of games as parts of their deals? Then, the Premier League and its broadcast partners get to serve this demand, instead of Justin.tv or Chinese P2P services, and get to capitalize on it through advertising or other means. It might have some effect on pay services by giving fans with the least willingness to pay a free service to use, but again, I'd argue that most people would still prefer to watch their teams' games on a bigger screen and in higher quality enough to pay for it. And the additional fans the services would reach could make new converts to paid services as well. Whatever the EPL decides to do, it's impossible to understand how it thinks it can benefit by alienating fans and making it difficult, if not impossible, for them to follow their teams.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Who Will Be The First Person Sued For Copyright Infringement Over Lifecasting?

from the it's-a-series-of-tubes... dept

The Premier League, the UK based football (or soccer, for those of us on this side of the Atlantic) league has a long history of misunderstanding the internet, and often that seems to involve having its lawyers lash out at the wrong people. First, back in 2005, the league blamed broadband providers for allowing fans to stream games live online, rather than recognizing that fans streaming such games showed a real demand for such a service. Then, in 2007, the league sued YouTube for hosting some clips of Premier League matches. This was boneheaded for a variety of reasons. First, YouTube was not the guilty party if it was copyright infringement. The liable party would be whoever uploaded the clips. Second, given YouTube's limits, people could only post relative short clips of games, which, if anything might help attract more fans to the matches.

The latest is that the Premier League is suing Justin.tv, the popular online service that helps people "lifecast," allowing them to broadcast a live streaming video from their computer camera. The Premier League noted that some Justin.tv lifecasters happened to point their cameras at a Premier League game on television, which the league considers to be infringement. Of course, the lawsuit is (yet again) mistargeted. Even if this is infringement, it's not Justin.tv's liability, but whoever the lifecaster is who pointed his or her camera at the screen.

Either way, this raises some more interesting questions about lifecasting. Specifically, pretty much anyone lifecasting their regular day is probably guilty of many, many copyright violations based on current interpretation of copyright law. If you hear a song, that's infringement. If you walk past a TV, that's infringement. Hell, reading a book could be infringement too according to some. Just the fact that you're letting someone else see what you see is basically infringement, which, when you think about it, highlights just how ridiculous copyright laws are these days. So when will start to see lawsuits against lifecasters?

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