HBO, Showtime Would Be Underdogs in a Legal Battle With Twitter (Analysis)

Floyd Mayweather might have outboxed Manny Pacquiao May 2, but Twitter CEO Dick Costolo landed the strongest punch to Hollywood with his tweet declaring his live-streaming app Periscope the “winner” of the night.

Thousands of users watched the fight via social streams rather than paying $100 for pay-per-view. “I thought it was just brazen for someone of his stature,” says Todd duBoef, president of fight promoter Top Rank.

DuBoef says Top Rank, which represents Pacquiao, plans to pursue legal action. HBO and Showtime could also be potential plaintiffs. But if Twitter is the target, it’ll be an elusive one, say many law experts.

The Digital Millennium Copyright Act shields services like Periscope and Meerkat that respond expeditiously to takedown notices. Periscope received 66 takedown requests during the fight. A Twitter rep says the company killed 30 of the streams. The rest already had ended by the time Twitter was made aware.

Does Twitter have a legal obligation to be proactive? That's been dealt with in past legal fights such as Viacom v. YouTube and UMG v. Veoh, exploring such issues as what ISPs must do when infringing activity becomes apparent on a system. The results there have been frustrating to content holders. And the situation could get worse with the introduction of apps like Periscope and Meerkat. As one studio lawyer puts it, "the DMCA was not designed for live-streaming."

Michael Elkin, the attorney who successfully represented Veoh, sums up the conclusion of past cases. “You can’t turn a blind eye, … but there’s no duty to screen on an affirmative basis,” he says.

If Twitter induced users to live-stream the fight on Periscope, that could cause problems. But attorney Lawrence Iser doesn't see much evidence of that so far, adding, “I don’t think the law requires a company to develop a new technology to thwart misuse of its product.”

That sentiment might seem ugly to HBO, which last month learned that some were using Periscope to live-stream Game of Thrones. At the time, HBO put out a statement, "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications."

HBO, of course, hasn't sued Twitter over Game of Thrones streams on Periscope.

If it did, it could attempt to portray Periscope as a performance rights-violating machine akin to Aereo, but the analogy would probably not hold because Periscope was hardly designed to evade licensing fees. It has legitimate uses that have nothing to do with television.

A lawsuit might also attempt to stick other claims on Twitter, but it'd be difficult. See: the struggles that the parent company of the Ultimate Fighting Championship had a few years ago when going after Justin.tv for allowing users to live stream its matches. Not only couldn't Zuffa get past the DMCA, but alternative claims like alleged trademark violations and the Communications Act's prohibition on "stealing cable" were punches not landed.

Sometimes, as many learned during the Mayweather-Pacquiao fight, a strong defensive posture triumphs. For this very reason, consider Twitter the favorite in any legal ring.