Right battle, wrong enemy: Sky’s real problem is bigger than NZME, Fairfax or TVNZ

I’m not certain of the legalities and small print of the Sky case but I’m pretty confident of this: Sky have a fair and reasonable point, the plaintiffs have a fair and reasonable point and all parties are fighting the same common enemy. Let’s be honest, when you hear about the latest Messi hat trick your first move is less to turn to the NZ Herald/TVNZ/Stuff and more to immediately Google ‘Messi Hat trick’.

Let’s go back in time to 1999, it’s a happier time, Prince is still alive and the Millennium Copyright Act (DMCA) is being signed into law in the US. Copyright laws are of course totally boring, but this held some of the building blocks of the explosive growth of the web, namely ISPs were not responsible for the content hosted on them. The implications of this, in turn, was that individual services were also not responsible (mostly) for the legality of content they contained. 

Fast forward to 2016 and though we now have content ID, and legal licensed services across the world, we also have global, wealthy businesses hosting legally grey content, say for example sports highlights. Illegal or not, the DMCA renders these platforms largely untouchable, and the organisations wealth, size and occupation of legally undefined zones do the rest.

Nothing is local anymore. The Sky v NZ Herald/TVNZ/Stuff argument is a fair one, but both parties are competing against global entities. If clicks are going to unlicensed sports videos on social media, who’s blame a struggling local media company from trying to push the boundaries. 

The same organisations that eat the NZ Herald’s news revenue are forcing it to push its luck against Sky’s sporting rights and of course Sky can’t easily sue Facebook. It’s the type of go around that the commence commission should think about carefully if they really are going to reject the NZME/Fairfax merger. 

The charges might be against a breach of fair use by old media but the anger is surely directed against the hosting and profiteering of licensed material by new media’s ubiquitous social platforms.

A final point about common enemies: a solution to the above was to come into force through the TPP which was to rewrite copyright for all signatories. The TPP of course is no longer happening and we all know who’s to blame for that…

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