A recently published patent application filed by Twitter provides a possible glimpse into the future of social media and selfies—and it’s a future arriving on the wings of that poster child of modern technology, the unmanned aerial vehicle (UAV), or drone. The patent indicates that Twitter may be experimenting with a system in which its users can use messages such as tweets to control drones, including taking photos and videos that may be streamed and shared with others in real-time through their user accounts. When asked by CNBC about this system, Twitter offered only a two-word explanation: “Drone selfies.” While Twitter’s plans for this technology as yet remain unclear, any company considering a system to enable capture and sharing of drone selfies or other drone-captured content (e.g., event livestreams) should consider the potential legal implications, some of which include Federal Aviation Administration (FAA) guidelines and regulations, the Digital Millennium Copyright Act (DMCA), and privacy and other tort-related laws.
FAA Guidelines and Regulations
Effective December 21, 2015, anyone who owns a drone that weighs more than 0.55 lbs (250 g) must register the drone with the FAA’s drone registry before flying the machine outdoors. Drone owners can nevertheless avoid the traditional, more-lengthy FAA approval process if they satisfy a number of criteria, such as strictly limiting the drone flight for hobby or recreational use, and flying and maintaining the drone within one’s own visual line of sight. Other criteria include: (i) the drone be no more than 55 lbs unless certified by a community-based organization (e.g., model aircraft club); (ii) operation of the drone be in accordance with community-based guidelines and within the programming of a nationwide community-based organization; and (iii) the operator gives notice to airport operators and airport air traffic control towers for operations within five miles of an airport. (For more details, see our “Game of Drones: UAV Entertainment and the FAA” post.)
If a company wants to enable individuals to use their social media accounts to control their own drones to take selfies or capture other content such as livestreams of events, the drone owners would need to register their drones via the FAA’s simple online registration process and follow the foregoing drone flight criteria to comply with FAA guidelines and regulations.
On the other hand, if a company wants to enable individuals to operate company-owned drones, it would likely need to go through the traditional aircraft registration process and apply for a Section 333 Exemption to operate the drones. Even if an exemption is granted for individuals to operate the company’s drones, such operations would likely be limited to individuals who “hold either an airline transport, commercial, private, recreational, or sport pilot certificate” and satisfy other requirements. (See FAA’s Section 333 FAQ for more details.)
DMCA “Safe Harbor” Provision
The use of social media for piracy purposes is nothing new. Although an individual user (who posts infringing content) may be liable, third parties operating the social media platform may enjoy a safe harbor under the DMCA if they are not aware of the infringing activity and expeditiously remove the infringing material upon obtaining knowledge or becoming aware of the infringing content.
According to the Twitter patent, the drone/social media system may improve event coverage by giving users control over drones to capture and share photos or live-stream video content of any aspect of an event. To avoid copyright liability, a third-party company offering such a system should remove any drone-captured content containing infringing material within days (or at most a few weeks) of receiving notice of the infringing content. (For more details on how fast is fast enough for social media platforms, see “The Complicated Relationship between DMCA Takedown Notices and the Word ‘Expeditious.’”)
A third-party company may also arguably avoid copyright liability by only storing drone-captured content on their servers for a few days (or not at all). Thus, even if a rights holder discovers infringing drone-captured content, the content would probably already be removed before the rights holders could even issue a takedown notice to the company. For example, Meerkat automatically deletes videos from the company’s servers after the livestream is over—effectively giving the company the argument that all infringing content are always expeditiously removed. (For more details on this dilemma, see “Periscope, Meerkat, HBO and the Live-Stream Dilemma.”)
Privacy and Other Tort Concerns
In general, Section 230 of the Communications Decency Act (CDA) affords immunity to providers and users of an “interactive computer service” from tort liability for information provided (via the interactive computer service) by others. In effect, Section 230 acts as a shield for a social media company that enables individuals to use their own drones to capture and share photos or video content on the social media platform even where the shared content causes tortious harm to others (e.g., harm to one’s privacy, damage to reputation, etc.).
If, however, a social media company enables individuals to use company-owned drones to capture and share harmful photos and videos on its social media platform, the company may run the risk of falling outside of Section 230’s protection. More particularly, because the company’s drones are used to take the harmful content, it may be argued that the company “provided” the content that caused the tortious harm.
Moreover, the social media company may risk a myriad of tort-related concerns, especially where the company provides the drones for individuals to use. For example, what if the commands sent from the social media platform to a drone are not compatible and the incompatibility results in trespass on the property of others by the drone, damage to such property, or injury to others?
As most every major industry player explores what can be done with the latest technologies, it’s only to be expected that services utilizing UAVs will receive ample attention (and investment). Nonetheless, it’s only through a careful, exhaustive consideration of all the potential legal implications that such efforts will be able to reach new heights, as opposed to being shot from the sky.