Copyrights in the Stream: The Battle on Webcasting
Haber, Eldar, Santa Clara Computer & High Technology Law Journal
The Internet opened a gateway to many activities that could enrich people's culture, including enabling the dissemination of media files, which promotes freedom of speech and information. However, it also enables unlawful activities, such as free distribution of copyrighted materials without right holders' consent and has proven to be a real problem for some right holders in the entertainment industries. These right holders have been using various methods to win their battle against Internet Service Providers (ISPs) and end-users who affect their business models negatively, so claim the right holders. (1) After many years, right holders are still combating different forms of P2P (peer-to-peer) (2) file-sharing. Even though they have won some battles, this war is far from over.
The current war against unlawful file-sharing of copyrighted materials is important for many right holders. However, winning this war probably will not change the inevitable outcome: end-users will keep searching--and finding--a way to consume content online for free as long as they possess the proper technology that enables them to do so and as long as enforcement measures continue to be relatively small-scaled and local. Hence, even if right holders win the current battle on P2P file-sharing, they will have to face newer methods of consuming free online content.
Webcasting is a digital form of transmission of media over a network that plays the media without storing a permanent copy at the recipient's end, using online streaming technologies. (3) Webcasting is sometimes referred to as the technology that enables it, i.e., streaming, which can be performed either "live" or "on-demand." (4) Through webcasting, end-users can listen to music or watch a video in "real time," instead of downloading the file and viewing or listening to it after downloading is completed. Hence, webcasting could be considered as an alternative to P2P file-sharing for end-users.
Although P2P file-sharing and webcasting share many similar features, they differ in few important aspects, especially with regard to the end-user's online activity. Whereas in the context of P2P filesharing the end-user's sharing and/or downloading content could infringe copyright (subject to some exceptions set in the law), in the context of webcasting, it is not always clear whether end-users' actions infringe right holders' rights vis-a-vis the reproduction right. Unlike P2P file-sharing, webcasting does not involve the making of a permanent copy of the work. Webcasting involves only the temporary storage of segments of the file before and while webcasting it. The temporary storage takes place in the Random-Access Memory (RAM) (5) of the end-user's computer or streaming device. Technically speaking, no copy of the material remains stored on the end-user's computer, or, at least, not stored for a long period, which leaves the possible infringement of the right of reproduction in question. Although an American court ruled that temporary storage in a computer's RAM infringes the right holders' right of reproduction, other cases have reached a different result, (6) leaving the legal question highly controversial and in an immediate need for legal clarification. (7)
In this Article, I analyze webcasting thoroughly while examining copyright law framework. I compare webcasting to past and current wars against P2P file-sharing to unveil major differences. I argue that webcasting poses a major threat to right holders' business models, much like P2P file-sharing, especially in the film industry. However, I claim that right holders' attempts to eliminate unlawful webcasting will be futile, as technology will continue to evolve. Finally, I opine that in order to find a possible solution for right holders' claimed loss of revenues, the right holders should start by abandoning their old business models and adapting them to the new digital reality. …