Did NewTeeVee/GigaOm Violate Copyright Laws By Telling You How To View The 2010 Olympics Online?

from the inducement dept

Mon, Feb 22nd 2010 2:00pm — Mike Masnick

It's no secret that tons of people are pretty damn upset with NBC's decisions to tape delay pretty much everything at the Olympics, in an era when everyone is used to real-time info. On top of that, most people recognize that it's not hard to simply go online to unauthorized sources to watch streams of the Olympics live. GigaOm's NewTeeVee put up a post over the weekend that explains how to view such unauthorized streams, and the site even titled the post: "Pirating the 2010 Winter Olympics." Given that this is all rather obvious, it shouldn't be a problem, right?

But, thanks to some screwed up court decisions that have forced secondary liability into copyright law, using an "inducement" standard, it's not hard to see how NBC could make a case against GigaOm for "inducing infringement," and therefore being liable for copyright infringement, potentially leading to a complete shutdown. Now, I hope that NBC Universal is smart enough not to take on this sort of fight, because it would backfire massively -- but, then again, we're talking about a company whose chief lawyer, Rick Cotton, is proud of how difficult NBC makes it to watch the Olympics, and believes that stomping out "piracy" is the key to saving the American farm.

So would NBC have a case? Well, compare what's written in the NewTeeVee article -- which (even with some disclaimers) explains exactly how to get unauthorized Olympics streams with the decision against Gary Fung in the IsoHunt case. In that case, the judge found inducement by Fung for statements that seemed a lot more innocuous than anything in the NTV article.

Now, GigaOm might have a fair use defense, in claiming that it's reporting, but a judge might challenge that, given the nature of the post itself -- and, certainly, we've been told over and over again by copyright holders (incorrecly, but... you know...) that fair use is not a right, just a defense.

Obviously, I think that GigaOm should be free to explain to people how unauthorized access to the Olympics works -- and I'm hoping that NBC Universal isn't so myopic as to go after the site for this post -- but in a world where secondary liability on third parties is "the law," posting anything like what NewTeeVee posted suddenly becomes a potential liability. This is yet another reason why we should be quite concerned with ACTA's intent to lock in this kind of problematic secondary liability on third parties.

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Filed Under: copyright, inducement, newteevee, secondary liability
Companies: gigaom, nbc universal

37 Comments

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Dark Helmet (profile), 22 Feb 2010 @ 2:08pm

Depends...
"So would NBC have a case?"

Not if the judge of said case is a hockey fan, that much I can assure you.

Look, here's the latest Helmet decree:

If you can't figure out that the single greatest non-medal competition in terms of its ability to draw attention in the States, like, oh I don't know, THE USA VS. CANADIAN HOCKEY TEAMS, ought to be on your flagship channel, then you don't get to talk about anything else having to do witht he Olympics. Ever. Never ever ever.

MSNBC....for USA v. Canada....featuring a ton of NHL stars from more large markets than you could possibly hope for....

Seriously, are they just TYRING to not make money?
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David, 22 Feb 2010 @ 2:18pm

Question
Is it actually illegal to view an unauthorized stream? That seems a bit murky to me, but if it is hypothetically legal, how could NTV be liable for telling you how to do it?

With isohunt, you're committing copyright infringement by downloading a movie (say) without authorization, and the site 'induces' that; does this apply to streaming as well?
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Mike C. (profile), 22 Feb 2010 @ 2:23pm

I actually like the coverage this year...
... It's been so bad that I have barely watched more than 5 hours worth so far and most of that was the opening ceremony.

- Happened to catch portions of the USA vs Canada men's hockey last night, but channel hopped during the commercials.
- Recorded Shaun White's gold for later viewing but fast forwarded through the commercials.
- Recorded opening ceremonies so my kids could see it later and skipped commercials again.
- My wife who is an ice skating fan didn't even bother trying to figure out when the ice skating was on, but relied on news reports for the highlights.

With this kind of coverage, I seriously doubt their viewership numbers will be all that great. I can only hope it's bad enough that the current leadership team at NBC is tossed out on their respective rear ends!
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Mike C. (profile), 22 Feb 2010 @ 2:29pm

Re: Depends...
At least AT&T with their UVerse service is doing their best to counter this. They've "mirrored" the 4 NBC stations to an unused channel range and put all 4 together. When I pull up the guide, I can see what's on all 4 at the same time. It's actually a pretty nice feature which allowed me to catch the game where I suspect many missed it.

Of course, the total lack of coverage of many events has prevented the Olympics from becoming a "must watch" concept for me. Accordingly, I tend to forget it's even on until very late in the evening.
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ScrObot, 22 Feb 2010 @ 2:38pm

Re: I actually like the coverage this year...
I watched most of the USA vs. Canada men's hockey game last night, and I don't believe there were any commercials during play, only during intermissions. No TV time outs. If there were commercials during the periods, they were few and far between.

And THAT is why NBC didn't want to show it. (Along with the "inability to cut away to other events.")

I do note that other hockey games that they've aired have had commercials during play though, and they often come back well after the faceoff occurs.
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Anonymous Coward, 22 Feb 2010 @ 2:41pm

Re: Depends...
"Not if the judge of said case is a hockey fan, that much I can assure you."

impossible!
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Davis Freeberg, 22 Feb 2010 @ 2:49pm

Rip and Burn
Didn't the studios use this threat to force a bunch of blogs to pull step by step instructions for ripping a DVD to your hard drive? I remember something about this four or five years ago, but haven't seen them try anything since. It wouldn't surprise me to see them try and take a swipe at them though. At the very least the threat of a lawsuit would have a chilling effect on this type of reporting and would help push this kind of information further underground. Somehow I doubt that they'd end up winning, but that's never stopped them from suing before.
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Anonymous Coward, 22 Feb 2010 @ 2:55pm

It's gotta be easier to pirate the streams!
I *thought* I wanted to watch the olympics online, so I went to nbcolympics.com to sign up. Step 1, install Silverlight...On my Linux system? OK, install moonlight. Step 2, prove you are a subscriber to a participating cable vendor. OK, the send me over to Time Warner...who says IE ONLY...on my Linux system? Oh, wait...I think I have a windows PC somewhere. Fired up IE and went to the site, and they sent an email to my time warner email address. OK, back to Linux and Firefox to get the email. It has a confirmation link (I'm getting excited now), but once I followed that link it wants a bunch of info from my last cable bill.... Sorry, by then I lost the Olympic fever.
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Anonymous Coward, 22 Feb 2010 @ 2:56pm

Instructions:

1) Go to Google.
2) Conduct a search.
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:Lobo Santo (profile), 22 Feb 2010 @ 2:59pm

"authorities"
Let the "authorities" push their fascist oligarchy dogma--once everybody has had enough there will be an end to that sh^t, and fast.
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david_sp (profile), 22 Feb 2010 @ 3:03pm

Re: I actually like the coverage this year...
Keep in mind that this is the same NBC leadership that was responsible for the O'Brian / Leno fiasco. If that won't get them kicked out, nothting will.
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another mike (profile), 22 Feb 2010 @ 3:12pm

it's spreading
Wired.com has a How-to post on watching the Olympics online. Of course, it starts out pointing people to the official NBC website. Then they go into all the ways that will fail and point you to international coverage and torrents where you can actually get to watch the Olympics online.
In protest of NBC's blatant anti-customer stupidity, I haven't seen anything of the Olympics this year. I didn't even know it had started until I saw Google's logo last week.
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Alex, 22 Feb 2010 @ 3:20pm

Just go to CTV.ca
CTV which has the canadian rights to show the olympics has all the sports streamed online, in real time, for free, available to anyone. The quality is not as good as NBC, and isnt in HD, but if you want to watch a couple sports at the same time its awesome.
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The Digital Hobo, 22 Feb 2010 @ 3:41pm

You paid, you're good
Ultimately you showed people that the best way to do it was to pony up $9. Seems like you just found a workaround, and didn't really break a law. Bend, maybe. Break, notsomuch.
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Anonymous Coward, 22 Feb 2010 @ 4:00pm

Re: Just go to CTV.ca
Uh, not any time I've tried (from Mexico). All I ever get is a "video error, try again later" message. Fail!
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Anonymous Coward, 22 Feb 2010 @ 5:37pm

Re: I actually like the coverage this year...
"but fast forwarded through the commercials"

You are stealing tv you bloody pirate !
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UhmNo, 22 Feb 2010 @ 5:46pm

http://howto.wired.com/wiki/Watch_the_Olympics_Online

Wired has a "how-to", too. Including a "Getting Around Location Restrictions" section.
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light anti tank intellectual property, 22 Feb 2010 @ 5:52pm

I ll tell you how to do it
come sue me im already insolvent
you cant get blood from a stone and im gonna tell everyone else a fwe added things

yup only way to stop me is a 3 strikes law and are you sure that will stop me
MUHAHA OH I LOVE wireless morons....
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NAMELESS.ONE, 22 Feb 2010 @ 6:00pm

@#2
no streaming is a form of downloading and as such is completely legal in canada. While your own country of the US of retarded ville may have a differant view they can suck my left nut and stay home.

take a 3 strikes and YOUR OUT OF CANADA
get lost dont come back you lazy shills
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Rick, 22 Feb 2010 @ 6:28pm

feed
I've been watching 4 live feeds from cable (one in french that I don't understand but what the hell...) Best Olympic coverage EVER, in Canada.
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David, 22 Feb 2010 @ 7:04pm

Re: @#2
Uh, what?
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Anonymous Coward, 22 Feb 2010 @ 8:20pm

The answer to your question is, of course, "No".
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Anonymous Coward, 22 Feb 2010 @ 10:18pm

"...certainly, we've been told over and over again by copyright holders (incorrecly, but... you know...) that fair use is not a right, just a defense."

After "copyright holders" I suggest inserting "the overwhelming majority of law academics, practioners of law, federal district courts, circuit courts of appeal, and the Supreme Court..."

But, hey, what do they know?
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Mike Masnick (profile), 22 Feb 2010 @ 10:32pm

Re:
The answer to your question is, of course, "No".

Funny. Seeing as you're one of the commenters on this site who has been an unabashed supporter of secondary liability for third parties, I find it quite interesting that you can so glibly say that it's not the case here, when it meets the exact criteria.

Guessing you just don't like it when folks actually point out the problems with your reasoning?
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Anonymous Coward, 23 Feb 2010 @ 6:11am

If tons of people are upset...
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Anonymous Coward, 23 Feb 2010 @ 6:16am

If tons of people are upset...
...then megatons must be happy, or at least somewhat happy, given the MASSIVE NBC ratings wins night after night, even exceeding the ratings of the other two networks combined.

Of course, I doubt NBC could do much to screw up when the United States is on course to one of their biggest winter Olympics medal totals ever.

The ice skating last night was outstanding and seeing North Americans take silver and gold and the outstanding performances they gave to achieve those medals will be something people remember for a long time. Perhaps not to the level of the 1980's Miracle on Ice, but definitely memorable. I think it will be difficult for another Olympics to be as good as this one was in my lifetime.
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Jimr (profile), 23 Feb 2010 @ 6:25am

Listing to the CBC Radio (the Canadian Tax payer funded new agency) the other day. They had a nice talk about US and Canadian Coverage.

Canada has tons of coverage and plan to cover every single minute of every single event of the next games and put it all on the internet in real time. AND they want to add commentary to it all in both FRENCH and ENGLISH.

The Canadian media expert basically called NBC backwards. To paraphrase: "How can any organization assume to have such vast control over information that is extremely popular world wide? We have twitter, blogs, phones and TVs that can all deliver the games results instantaneously. Those interested parties already know the results before NBC broadcasts in prime time and will not watch it. In the information age you can even attempt to hold people hostage in hopes they will watch later. NBC just not even get it and their expected lose of $240 Million at the games should be a good learning lesson. BTW: The commercial Canadian coverage is making money (even by distributing it on-line).

If you think Olympic coverage Canada is good it will get better and better each time. They seem to accept that they can not control the information and hence are working hard to make sure they can find other means to profit while delivering the information that people want.

It seems that overwhelming greed and arrogance of the US businesses (and banks) is destroying the life enjoyment of the general people.
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JerryAtrick (profile), 23 Feb 2010 @ 6:31am

Re: Rip and Burn
the studios and the MPAA (motion picture assoc.) are doing everything in their power to strip us of all of our rights! Have you heard they are trying to lobby the FCC for control of our TV output systems? Meaning they want to be able to turn off/on the devices that we plug into our television set!
They won't stop until everything we watch is controlled by them and the money sits nicely in their pockets... A-wipes.
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JerryAtrick (profile), 23 Feb 2010 @ 6:32am

Re: It's gotta be easier to pirate the streams!
haha of course its easier to pirate it, but how come we can't come up with some sort of technology to stop piracy? Seriously there has got to be some type of recognition software or something like that to force pirates from stealing.
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JerryAtrick (profile), 23 Feb 2010 @ 7:19am

Re: Re: @#2
HAHA
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Anonymous Coward, 23 Feb 2010 @ 7:20am

Re:
"Those interested parties already know the results before NBC broadcasts in prime time and will not watch it."

Now, that is just freaking shallow, isn't it? I know the answer, so why watch? How about, HOW did you get the answer? You know the ending to a book, so why read it? The answer is that because there are many circumstances where the trip is as important as, or even more important than, the destination. There was a huge difference between knowing the results for ice dance and actually watching the phenomenal performances. Yes, the person who got the results via twitter knew the end, but they knew virtually nothing about how the performers got there.

What a sad life to know all the answers but be clueless as to how the answers were achieved.
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crade (profile), 23 Feb 2010 @ 7:42am

Inducement is such a moronic term to use for this secondary liability stuff.. They don't "cause" the infringment to happen in any way, or "persuade" or "manipulate" anyone into infringing.
They should at least call it something that applies somewhat like "encouraging" or "assisting"..
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Anonymous Coward, 23 Feb 2010 @ 8:46am

Re: Re:
It does not meet the "exact criteria". It is not even close. I am surprised you try and draw a comparison when the law clearly does not lend support for what is suggested in your hypothetical question.
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Farrell McGovern (profile), 23 Feb 2010 @ 9:07am

US vs Canadian Coverage
I think that it is interesting that NBC's coverage of the sports part of the Games is very spotty at best, but their coverage of things like the cultural aspect is far superior to CTV's. NBC first of all had a great introduction to Canada by Tom Brokaw, then their coverage of the Opening Ceremonies was full of commentary including the background info.
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Mike Masnick (profile), 23 Feb 2010 @ 10:55am

Re: Re: Re:
It does not meet the "exact criteria". It is not even close. I am surprised you try and draw a comparison when the law clearly does not lend support for what is suggested in your hypothetical question.

Again, what NTV did is much more direct than what Gary Fung did. And yet the judge there did find him to have induced.

So, again, I have to ask why?
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Anonymous Coward, 23 Feb 2010 @ 11:21am

Re: Re: Re: Re:
"So, again, I have to ask why?"

Read Grokster re the elements necessary to establish a cause of action based upon "inducement", and then consider the extent to which Fung (the IsoHunt litigation) met those necessary elements.

Now turn to your hypothetical and ask yourself if on the facts you proffer the circumstances and contents of the article meet all of those elements. Clearly the answer is "no".
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SeanG (profile), 24 Feb 2010 @ 6:58pm

Re: It's gotta be easier to pirate the streams!
Yeah, I spent about 5 seconds hassling with that login bullshit. What a joke. Does a content provider really have a right to do that? Can't they already tell who my service provider is by my IP address that accessed their site (hence why the Canadian streams seem to be blocked for me)?
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