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
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.
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
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
Viewers can either stream or download all episodes for free, or purchase them on
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
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 News.com, Sonicblue to Launch DVR,
Despite Suit, at http://news.cnet.com/news/0-1006-200-8005769.html (Nov.
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.
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.