Maryland Bar Bulletin
Publications : Bar Bulletin : October 2006


Internet TV Offers Fresh Opportunities for Content Creators and Viewers Alike

Music Led the Way…

The digital revolution marches on. In the entertainment context, meaningful change first appeared in technology which compressed audio and video content, making it possible to transport data without the loss of quality. Consumers initially experienced the technological shift most pervasively in the form of portable devices for playing music (MP3 players), while entertainment content creators (authors, songwriters, filmmakers, screenwriters) utilized the Internet as a vehicle for transporting (selling) data.

This commercial win-win for creators and consumers found fertile ground within the music industry in particular. Independent musicians not affiliated with a major music-recording or publishing company embraced the distribution model offered by the Internet and breathed new life into an industry that was historically dominated by media conglomerates. The result is not only new revenue streams for formerly struggling musicians, but an abundance of fresh new music produced by writers and artists that do not appear on the Billboard Top 100, and who would otherwise be limited to a regional fan base.

…but Internet Television is on the Rise

The film and television industries have responded to the digital revolution with less abandon. Or at least it appears that way when juxtaposed against the music industry. This is likely attributable to the larger number of participants in the music industry, where there is no shortage of writers and performers, who are aided by the advancing technology. For example, digital keyboards have provided the means to create full orchestral sound with the programming of a few keys, obviating the need to hire and pay scores of musicians to record music. Digitally-based music software programs make it possible to transform a home basement into a complete and professional sound studio. Music content and creators abound, and this is reflected in its availability via the Internet.

Likewise, in television as in music, technological change has leveled the playing field. Prior to the advent of digital technology, creating television programming was generally the province of entities and individuals possessing a studio, experience with operating a camera, writing a screenplay, identifying and engaging talent, or with sufficient funding to finance all of the above, and with sufficient industry contacts to successfully pitch and get programming aired on one of the networks. These impediments made the industry generally inaccessible for many would-be content creators, or limited the scope of their participation.

Enter digital technology and the Internet. Video-streaming now makes it possible for anyone with a video camera, microphone, and broadband Internet access to video broadcast or webcast from anywhere – whether a studio or their own home. Levels of sophistication – for example, access to a good studio, special lighting or a well-written script – may vary the nature of programming, but no longer impact its availability or producers.

Consequently, hundreds of Internet channels are emerging, as well as independently-streamed video from independent (or "indie") video producers. For example, The Blair Witch Project, now a well-known film and one of the most successful and profitable indie films ever made, was one such indie project that was initially promoted via the Internet. Daniel Myrick, the film's producer, has since launched an Internet television/film series called The Strand. Viewers can either stream or download all episodes for free, or purchase them on DVD.

While Myrick is an experienced producer, support industries are emerging to aid less-experienced entrants to Internet television. For example, Brightcove is an Internet television service that provides the means to launch a broadband television channel through syndication. Their services extend to the entire spectrum of the industry to include content developers, marketers and publishers. The opportunities for the small video production participant have increased astronomically, just as for music industry participants. New sponsorship opportunities are also evolving.

These opportunities to reach new television audiences via the Internet extend not only to small and new entrants but are also highly valued by the major media players: NBC, CBS, ABC and Fox. All of these networks currently offer free, advertising-supported shows online. NBC only recently joined these other networks; it began streaming episodes for this Fall's season of programming on October 1, 2006. While small video producers and content creators use the Internet to gain entry to television, the networks use the opportunity to heighten awareness of new shows, or to provide background about the shows' production and offer opportunities for interactivity that viewers would not otherwise have via traditional TV.


But the world of Internet TV is not a perfect one. The newness of the medium leaves certain questions unanswered; for example, the jury is still out on whether advertising-sponsored programming presents a better business model than pay-per-view programming. The Strand programming referenced earlier was reportedly slated to originally charge per episode, but ultimately offered all episodes for free, with the option to purchase DVD versions. Additionally, streaming technology has not always been of the highest or most consistent quality, and viewers' experiences can differ depending on variables like whether programming is delivered via a PC or downloaded to a portable viewing device, like the Apple iPod, which is an option for certain programming.

The quality of content also poses challenges in terms of protecting the intellectual property embodied therein. The fact that digital technology makes perfect reproductions possible is believed to make piracy an attractive option, and indeed, the music industry has waged its battles against Internet piracy, downloading and file-sharing, and waged them successfully thus far.

The following legal issues were identified in Internet Television and Copyright Licensing: Balancing Cents and Sensibility (Michael A. Einhorn, 20 Cardozo Arts & Ent. L.J. 321, 2002) as examples of copyright questions and challenges facing Internet TV:

» In November 2001, Sonicblue launched the ReplayTV 4000 digital video recorder, which will allow users to record programs onto a hard drive and pause live television. Moreover, consumers can skip commercials during playback and distribute programs to other ReplayTV 4000 owners via the Internet. On Oct. 31, ABC, CBS, NBC and their parent companies filed suit, alleging that the device allows consumers to make and distribute copyrighted programs without permission. The suit argues that such devices deprive the networks of revenue and reduce their incentive to produce new shows. See, Sonicblue to Launch DVR, Despite Suit, at (Nov. 28, 2001).

» Like cable, Internet retransmitters might disseminate local television signals to distant audiences which otherwise might not be able to receive the program. Even without payment, the commercial gains to the original broadcasters here can be considerable. In light of the Supreme Court's decisions in Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974) and Fortnightly Corp. v. United Artists Tel., 392 U.S. 390 (1968) we can reasonably expect that Internet providers will be allowed to retransmit over-the-air television signals to distant broadcast regions without paying the original broadcaster. The issue remains whether program producers will demand payment for re-use of copyrighted programs.

The preceding challenges do not purport to be an all-inclusive list, for as the digital entertainment revolution continues its march, the legal questions, issues and challenges will continue to impact its journey.

Cheryl L. Slay is an Arts & Entertainment and Intellectual Property attorney and Chair of the MSBA Entertainment & Sports Law Committee.



Publications : Bar Bulletin: October 2006