My question concerns the playing of licensed/copyrighted music on live video services like uStream.TV. I've been told that live video streaming does not fall under the music licensing laws, but it would seem to me, that the laws would apply to this venue as it does with audio podcasting. Also, does it matter whether the live stream is being recorded or just broadcasted (without recording the actual stream for archiving purpposes). Thank you in advance.
Playing licensed music on a live video stream like uStream
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Unsettled...
It's a surprisingly difficult question for two different reasons. First, much of the matter will depend on the exact nature of the use and the role the music plays. Second, this really is not a settled area of copyright law.
So the first question is how are you using the music? Is it going to be just in the background while you talk or have other video showing? Will you be using just some or all of the song?
If you use the song in a manner that could support a fair use defense, the issue of legality over streaming media is moot.
On that note though, the courts really have not addressed the issue of streaming video, such as UStream. The closest things currently on the books are podcasting, which you mentioned, and YouTube. However, in both cases, using copyrighted music in a way that goes beyond fair use is an infringement, unless you have a license to use the work.
With podcasting, as you know, there is a compulsory license that means podcasters pay for every track they play. Youtube has no such system but allegedly infringing works are removed regularly and are the subject of lawsuits against the site.
As for your issue about streaming vs. recording, in the current legal climate, it makes little difference. The reason is that courts have recently ruled that even copying something to RAM, something necessary to stream a video, can constitute an infringement.
Though that may be overturned soon, that is where we sit as of this writing.
My advice here is the same as everywhere else, do not use copyrighted work without either a license or a clear fair use defense.
I am not an attorney, but I think that is sound advice.
Jonathan Bailey - plagiarismtoday.com
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