The Legal Considerations of Using Live Streaming Services

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One of the advantages of live streaming is that it is directly capable of global implementation. It is imperative to understand that this creates more legal implications than one might first assume. In the case study to be discussed, New Jersey had claimed that Toys R Us violated state consumer protection and product safety laws because children throughout the country were able to access the company’s website. The global accessibility of the website included a program called ‘kids island’ which provided information on promotions and events, allowed access to a special club, and featured details on new products. The information was found to be in violation of an existing administrative order concerning consumer protection and similarly terms and conditions of another settlement with New Jersey concerning toy product safety. This case highlights the importance of understanding the location of the audience and the corresponding laws and regulations. In regards to global implementation, a company should restrain from accessing markets where their service might lead to a breach of foreign law. This may sound straightforward but the reality is a series of complex legalities with some countries having foreign laws which may conflict with other countries’ foreign laws.

This essay discusses a case study which provides an excellent example of the risks and legal issues associated with doing business on the internet and via electronic means. A just-out settlement between US New Jersey state and toy retail giant Toys R Us Inc. has highlighted the need for meticulous understanding of laws and regulations.

One of the key communication advancements of the current century, live streaming has transformed the way we engage and consume content. Most notably utilized in the social media and entertainment industries, the technology has recently found a new arena in the business world. Utilizing live streaming technology, companies are able to reach out to stakeholders more than ever. The annual reports, circulars, and AGMs of present could soon become a thing of the past. So too could in-house training sessions and seminars. The business of tomorrow is one of increased efficiency and cost-effectiveness, and the live streaming technology could well be the gateway to this for many companies.

Legal Obligations for Live Streaming Services

With regards to intellectual property rights, it is unlikely that live streaming services will be taken to court for indirect patent infringement. However, they are still expected to check the background of any live events they host to ensure they aren’t in breach of these rights.

In this case, the extent of legal action may not reach the live streaming services themselves, although they may be forced to change their software if record companies take action against the software providers, as was the case with the now-defunct file-sharing program Napster. The same cannot be said for the recent case of Surfthechannel, a site which hosted links to copyright TV and film streams. The creator of the site, Anton Vickerman, was sentenced to four years in jail in 2012. This is an example of the law being enforced with more severity due to the potential size of the audience in comparison to other methods of copyright infringement. Furthermore, Vickerman was also ordered to pay £147,000 in legal costs. This case indicates that the law is becoming stricter in this area, meaning legal action in the form of civil cases is increasingly likely for live streaming services of copyright material.

The law of copyright is complex and is currently being challenged and changed to adapt to the digital age. Live streaming services that allow viewers to watch the latest films that have been released on DVD or in the cinema are clearly in breach of copyright. Prior to the internet, a breach of copyright usually only involved the distributor and possibly the end user, such as someone videoing a film on TV. With peer-to-peer software, the distinction between the provider and viewer of copyright material has become less clear. Users of peer-to-peer software usually automatically upload the file they are downloading, making them a provider of that file. Although this is still a direct breach of copyright, the increased ease of access to a large audience has seen record companies taking action against people for thousands of pounds in damages.

According to Ward and Ramsey (1998), the legal obligations for live streaming services can be seen in two key areas. The first is in copyright and intellectual property rights, and the second is privacy and data protection. This section will not only consider the legal obligations but also the extent to which live streaming services are responsible for ensuring they comply with the laws in these areas.

Copyright and Intellectual Property Rights

The right to prepare derivative works means the exclusive right to make larger works from the original, to alter or transform the original, and to combine the original with other previously existing works. Derivative works include translations, dramatizations, fictionalizations, motion picture versions, sound recordings, and any other form in which an existing work may be recast, transformed, or adapted. An alteration or transformation of the work is a step beyond mere reproduction. Changing the font of a work printed on a computer disk, for example, is a hardware reproduction. Step-by-step instructions to the graphic artist to expand a photograph or drawing into a higher resolution image, however, constitute an alteration of the original.

Copyright is a form of protection that is grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. Once a work is in a fixed form, the copyright holder has the exclusive right to reproduce the work, prepare derivative works, distribute copies to the public, and display the work publicly. It is important to distinguish between the composition of works and the creation of fixed material. The composer possesses a copyright when the work is finished. The creator does not infringe by making a sound or video recording of the work when it is performed, as the recorder is creating his own fixed work.

Privacy and Data Protection

Data protection provisions, however, are only relevant to information of a certain type. Different countries’ data protection laws define “personal data” in various ways, but it will generally encompass any information that can be linked to an identifiable living individual. Anonymized information is not subject to data protection laws as it is not possible to link it to a specific individual. Live streaming services may, from time to time, process health, criminal history, and other types of sensitive data. Data protection laws place tighter restrictions on the processing of sensitive personal data due to its increased potential for harm if misused. Health and criminal history data typically have defined higher standards for what constitutes processing it, and additional restrictions may apply to their processing.

Live streaming platforms may implicate user privacy given the potential to disseminate personal and private information to the general public. A streamer may inadvertently expose personal information to viewers via streaming a type of content that others may tag and/or disseminate to community news sites and social media. The streamer may also intentionally provide personal information during the stream. These actions can have the effect of nullifying the expectation of privacy in the personal data provided. Given the potential for global access and permanence of the information, this can result in a high level of public visibility and impact for a given piece of information. High profile individuals may be particularly susceptible to this given the interest in them readily attracting an audience.

Regulatory Compliance for Live Streaming Services

An obvious first step is to consider the laws of the country where the service provider is based. For a company based in a specific country, they are obliged to adhere to the law of their own country. However, for a live streaming provider who is based in no specific location, the situation is more complex. In this case, the provider must adhere to each national law as if it were their own. This is a result of the traditional method of establishing choice of law; a company is subject to the law of its own country, but for all other legal matters, law is selected based on the closest connection. This means that a live streaming provider is subject to the laws of all countries when providing a service to inhabitants of those countries. Failure to adhere to this can result in the establishment of deemed law, where the courts imply that a company is subject to a certain country’s law due to its actions, which can result in legal proceedings and an obligation to adhere to that country’s law.

When offering to the public any good or service, it is imperative to be aware of regulations and laws that may affect the provision and delivery of that product. For live streaming services, this is no different. An international service such as livestreaming is subject to a huge range of laws and regulations, from international law to regional law, to the law of the country where the service is based. This can make it difficult to be fully aware of legal obligations for live streaming services. However, it is still possible to make a broad assessment of the legal requirements for such a service. This is essential for minimizing legal risk and ensuring that the service is compliant with relevant law.

Broadcasting and Telecommunications Regulations

Regulatory compliance can become an expensive process. The start-up and small business nature of current streaming services means that many providers may not yet be in a position to be turning over a large profit. A high compliance cost in the form of licensing fees and other regulatory expenses could put small providers out of business or result in the service no longer being accessed in a certain region.

All streaming services are considered as broadcasters and are “transmitting” programs under the terms of most Broadcasting Acts. However, the definition of broadcasting is usually wide enough to include streaming services that have an on-demand function, acknowledging the gradual disappearance of traditional “linear” viewing. This was made clear in a statement by the British broadcasting regulator Ofcom relating to an investigation into the BBC’s iPlayer. The statement said that they would not be taking any enforcement action because they were still evaluating the changes to their regulatory policies in light of the services in question. However, they stated that “we do not intend to unnecessarily restrict the growth of on-demand and internet media”. This suggests that there is a high possibility that the regulations for broadcasting will be extended to on-demand services. If this is the case, streaming services that operate from countries with established broadcasting regulations will need to choose whether to relocate in order to escape the regulations or to comply with the regulations for the sake of being able to take part in national markets.

Content Restrictions and Censorship

This would result in live streaming services being regulated through mandatory industry codes of practice which involve self-regulation. An example of content regulation through self-regulation is the regulation of internet content providers through the internet industry code of practice. This is not very effective and would still require live streaming services to adhere to requirements which may not be beneficial to them.

Live streaming services are not text-based and do provide audio-visual entertainment, yet there is an argument that they still do not qualify as providing a ‘radio or television program’. Classification of live streaming services under this Act would mean that they are required to filter out MA15+, R18+ and X18+ content through a restricted access system. This has negative implications for the functionality and success of these services, yet the definition of radio and television program may never be amended in a way that is beneficial to live streaming.

Live streaming services are at a significant disadvantage because the Act explicitly excludes services which provide a ‘datacast’ from being classified as a radio or television program. A datacast is defined as a service which provides primarily text or still images, or automatic data acquisition and delivery. The definition is obviously outdated and was formulated to describe internet services as they were in 2001.

The regulation of broadcasting content is the most extensive sub-category of regulation in the telecommunications and broadcasting industry, and is highly relevant to live streaming services. Like traditional radio or television broadcasters, live streaming services are content providers. This means that services which stream their content are subject to the Broadcasting Services Act 1992. However, this legislation only applies to the providers of content that is considered to be a ‘radio program’ or ‘television program’.

Age Restrictions and Parental Controls

One of the most commonly used methods to enforce age restrictions on content is requiring the user to hold an account with the service, which includes providing a date of birth and then using this information to determine what content they can access. In the instances where it is the account holder’s parents who are paying for a given service, it may be that the parents want to set controls on what content can be viewed by their children, without restricting what they themselves can watch. The US Communications Act (amended 2007) and the UK’s Ofcom code seem to miss the subtleties of this issue as they do not account for the fact that the content viewers and the bill payers may not be the same person. A more flexible system is required to be developed to effectively implement these new age restrictions for both account holders and parents.

A more recent development in regulatory compliance for broadcast and telecommunications is the implementation of age-specific content ratings and parental controls. This regulatory system was first developed for video games and was extended to television broadcasting. However, with the increasing use of on-demand and catch-up TV services, there have been calls for greater uniformity in the TV and video-on-demand content regulation. Step in the Broadcasting Code for VOD services, brought into effect by the Authority for Television on Demand (ATVOD) in 2010. This code has begun the process of ensuring that content available TV shows and films on demand is subject to similar regulations as when broadcast. In the future, should this code be fully implemented and reinforced via statutory regulations, the likelihood is that the regulations for live streaming services will be extended to cover on-demand content also.

Liability and Risk Management for Live Streaming Services

At the same time, the consequences of not doing enough to prevent harmful content can be severe. Websites can face lawsuits for negligence to users harmed by content which should have been removed and in some cases government intervention to restrict or shut down the service. An extreme recent example is the South Korean government’s temporary closure of the popular online game Lineage in 2013 due to regulations violations relating to player harassment and the Cyber Defamation law. Compliance with these varying requirements means live streaming services must have a flexible content control policy, able to cater for changes in service size and user demographics.

An obvious case is spammers and linkers of illegal content forcefully attempting to promote their material simply because doing so during a live event means failure merely results in trying again elsewhere, since the material itself is not saved. Measures to mitigate these risks must be proportional to the size and intention of the user, as strong moderation against harmful content might alienate users simply wishing to have content exposure. High profile examples of excessive moderation resulting in service alienation have caused large user emigration to alternative services.

Liability and risk management is another important factor to consider when engaging in online services. By nature, all user-generated content is potentially harmful to the host website. In the case of live streaming, this is a particularly urgent consideration as there is no time delay between the content being created and it being viewed by other users. Such immediate publication often results in an increase in both useful and harmful content. The former because it remains more engaging for a live audience to influence the content as it is being made, the latter because users intending to harm the service provider have a small window of opportunity to do so which they might not have with other content creation methods.

User-Generated Content and Moderation Policies

User-generated content and moderation policies require a specific look at how the company will address control over the content its users create on their platforms. Most live streaming services want a large amount of diverse content to appeal to a broader group of viewers. This creates a dramatically increased likelihood that user-generated content will be offensive or inappropriate, leading to potential civil liability. PewDiePie’s Firewatch incident is an example of this happening. As the Firewatch player base is about 25-30+, the actions by PewDiePie already would have gone against his viewers’ interests. The language used in the video is inflammatory and derogatory, as he repeatedly calls the game developers ‘assholes’ and proceeds to yell ‘I AM A LEGEND OF THESE PARTS’ after taking down a nondescript creature effigy. This would undoubtedly upset Firewatch fans, making them feel the game wasn’t dear to PewDiePie as an influencer, and the developers’ potential backlash/suing would have resulted in a total takedown of the content or legal action. This highlights the fact that PewDiePie’s streaming of the game wasn’t aligned with the company’s interests. Therefore, the potential content on his stream may cause a much more severe action against his words, issued by the company. Live streaming services should be aware that they can be vicariously liable for user-generated content, as it counts as third-party data over which the company has established control and profited from. This means that the content is essentially owned by the company, and if it is too hot to handle, it could be subject to a takedown request or strongly affect the user who created the content. However, as seen through many DMCA takedown requests on music by Twitch a few years ago, the company itself taking down the user content can lead to backlash and further legal implications. The best course of action is to avoid this problem by preventing the content from being too unsuitable in the first place. In order to properly control UGC, companies will want to set and enforce a content policy and terms of service. The more traditional ways to moderate UGC are via a reactive system, such as user reporting, having moderators assess the content live at the time of upload, or having AI learning algorithms assess the nature of the content and if it breaches the set policy. The latter has become increasingly popular among various sites. HighDive currently recommends Vidliis’ machine learning algorithm to assist their videos for image recognition, understanding speech for closed captioning, and filtering comments. Setting a good foundation of what is and isn’t suitable early on is quite efficient but harder to change once the threshold has been surpassed. An eloquent example is how Twitch’s US-based policy on nudity barely tolerates what is allowed on Japan’s game streaming site, resulting in the recent lawsuit of a partnered streamer, Jessica Negri, who was banned for wearing a cosplay of a game character. In response to an in-depth further explanation by Negri of her ban event via AMA, she stated, “My content was deemed too sexual for the Twitch platform.” This resulted in a community backlash and international awareness of the issue, as CRN News saw this newsworthy to report. This serves as an instance of how moderation and a set content standard should take precedence over possible revenue loss and how easy it is to revert back to UGC control over a mistaken tolerance.

Terms of Service and User Agreements

In filing its motion to dismiss, Google used affidavits in its request that the judge consider the arguments made, rule in Google’s favor, and largely decide the case without providing the plaintiff an opportunity to respond. While Rule 56 of the Federal Rules of Civil Procedure allows judgment to be rendered upon motion so long as there are no genuine issues of material fact.

An example of a TOS with a browsewrap agreement, often held to be unenforceable, was faced in Feldman v. Google, Inc. et al. In this case, the plaintiff, an attorney proceeding pro se, brought suit against Google for Google’s repeated refusal to remove defamatory material posted about the plaintiff by a third party in Google’s newsgroup. The plaintiff sought a temporary restraining order to be followed by a permanent injunction to remove the offending material from the search engine and newsgroup, as well as general and punitive damages.

A standard form contract is a pre-printed boilerplate document with blanks left for adding additions or modifications. Contracts of this nature are standard for the software industry and are often the only agreement between the parties. Both TOS and standard form contracts are terms of contract and are governed by traditional contract law.

Streaming services, like many companies that maintain websites, often operate under the misconception that their terms of service (TOS) or standard form contracts are not valid or are unenforceable. To the contrary, TOS and standard form contracts are quite effective in shielding the drafter from liability, which would otherwise be inflicted by online tortfeasors annoyed by the website operator’s enforcement of the TOS against the user.

Cybersecurity and Data Breach Prevention

Ultimately, the most effective security measures for any live streaming service are those that can guarantee the complete prevention of outside access to data. In practice, complete prevention may be an unrealistic goal, however every step made toward that end will make a service more secure.

With the ever-growing popularity and power of hacking communities and the potential damage that can be done with even small amounts of private data, it is essential for any live streaming service, particularly one that plans to cater to commercial interests, to take serious precautions to ensure data security. More proactive measures may include designing network architectures that limit the exchange of certain types of information, or information stored in certain locations, to specific users or groups. If the content of a live streaming service is particularly sensitive, it may be wise to research and develop specific security measures or algorithms suited to its unique needs.

Perhaps one of the greatest risks of live streaming user-generated content comes in its inherently open nature. The peer-to-peer and real-time connections necessary for good live streaming are often two-way connections that allow not only an incoming stream to be viewed and retransmitted, but also permit others to enter one’s computer or system and to view and copy data. There are countless programs available to snoop around a computer that is connected to the Internet, and many tools exist that can be added to a URL to allow outsiders to gain access to web pages and data stored on a server.