June 1, 2007 4:00 AM PDT
MLB aims brushback pitch at Slingbox
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A problem could arise if a Slingbox owner were to rebroadcast the content or allow others to tap into his or her Slingbox feed; that's where the legal issues get tricky. But Sling Media issues special access codes for each set-top box to prevent just that scenario, and explicitly prohibits sharing access codes in its licensing agreement.
And even if a Slingbox owner were to allow someone else access to his or her device to watch an out-of-market game, that would be a violation of the licensing agreement, but Sling Media probably couldn't be held liable.
"I see no way Sling can be held responsible for that. There's no way Sling knows, when it sells to that customer, that the customer is a cable or sports package subscriber," said the EFF's von Lohmann. That would mean Sling would have to know in advance how a certain subset of customers were planning to use the product--an element Sling can't know or control.
Though it might sound similar to the legal defense mounted by YouTube, it's not, according to von Lohmann. YouTube acts as an online repository for video clips submitted by the site's users. Google, which acquired YouTube in 2006, has been sued by, among others, Viacom, England's Premier Soccer League, and a Los Angeles journalist, for hosting video content that YouTube doesn't have the right to reproduce or rebroadcast.
YouTube has argued that it can't control what its users do. But that theory doesn't apply here, says von Lohmann. The Slingbox doesn't store or host any content. And to tune in any programming, like a baseball game, you have to catch it live.
If any content owners were to take Sling to court, they could possibly argue "inducement," a legal theory the Supreme Court recognized in the landmark file-sharing case of MGM v. Grokster, in which von Lohmann provided legal counsel. In that case, the court agreed that technology vendors can be held liable if they actively encourage users to violate a copyright. In a potential case against Sling or its customers, "If (content owners) want to make that argument, I think it's very likely that a court would find that fans watching their own programming they've paid for would qualify as fair use," he said.
A potential legal fight involving Slingbox would also be similar to an older copyright case involving Sony's Betamax product. The U.S. Supreme Court agreed that Betamax was not illegal because the device was capable of "non-infringing uses." If MLB were to start a copyright battle with Sling over its content, Sling could win for the same reasons.
Sling says it has not encountered problems with any other professional sports leagues. In fact, the commissioner of the National Basketball Association, David Stern, invited Sling to present the product a year ago at its NBA Tech Summit, indicating his approval of the device.
"All the other leagues understand what business they're in," said Krikorian. "All the other leagues understand that their paying fan is their key asset and crown jewel. (The Slingbox) further tightens the relationship between the league and that consumer, and that is a good thing."
MLB.com says it is still in observation mode. "We're watching what (Sling is) doing. We think the issue is not place-shifting; we think the issue is transmission-shifting," said Bowman. "We're a company that has stood foremost for our fans and that will never change."
In a situation like this, both sides make a fair argument. "It comes down to content owners attempting to retain (pre-Internet) business models in an online world and trying to hinder consumers who are trying to do the right thing and use their content the way they want to use it," said industry analyst Josh Martin.
And suing fans isn't exactly a popular strategy, as demonstrated by the recording industry--which may be part of the reason content owners haven't made any legal moves against Sling or its customers.
"I think the mainstream players in the entertainment industry don't want to take a chance in pressing a case, losing, and setting a precedent," said von Lohmann.
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