Mayweather v. McGregor Warrants Preemptive Anti-Piracy Efforts

This Saturday, the world will be treated to one of the most hyped events in the history of sports when “The Notorious “ Conor McGregor and Floyd “Money” Mayweather Jr. meet in Las Vegas to become (even more) rich while ostensibly also participating in a boxing match. The bout marks the first foray into boxing by a champion mixed martial artist—McGregor—at the height of his career, and is made even more compelling by the fact that he’ll be facing one of the greatest boxers of all time in Mayweather Jr.—albeit somewhat past his prime. The seemingly endless prefight activities have included an over-the-top press tour full of provocative trash talk, celebrity-attended training sessions, and a preventative effort by Showtime—the network airing the fight—to quash the inevitable flood of unauthorized streams that will pop up during what is predicted to be the most pirated event ever.

Last week, in response to concerns over lost revenue resulting from illegal feeds of a fight that is expected to take in close to a billion dollars, Showtime brought a preliminary injunction against over 40 websites affiliated with LiveStreamHDQ—a recurrent bad actor in unauthorized streaming—poised to broadcast illicit streams. In its complaint, the premium network targeted sites with blatant domain names such as mayweathervmcgregor.livestreamhdq.com and floydmayweathervconormcgregorfight.us, which Showtime alleges are engaged in “keyword stuffing” in an attempt to appear at the top of search engine results and draw as much traffic as possible to unauthorized streams. After review, District Judge Andre Birotte Jr. approved the injunction, prohibiting the websites from offering infringing content, and since then, it appears that at least some of the sites have backed away from their shameless promotion of free streams.

Preemptive strikes against anticipated copyright infringement are somewhat of a rarity, but they can be imperative when dealing with a short-lived yet furious demand for a marquee, live sporting event—especially one with a pay-per-view (PPV) price tag of nearly $100. In 2015, Showtime and HBO launched a “pre-piracy” offensive against two websites that had announced plans to stream the much-anticipated Mayweather v. Pacquiao boxing match. And while the threat of a lawsuit was successful in deterring the targeted websites, the fight was still subject to massive piracy through mobile live video streaming apps such as Periscope and Meerkat.

Despite their limited success, these proactive attempts to curb expected infringement have led some critics to accuse networks of censoring and site-blocking any website they choose for a theoretical crime that hasn’t yet occurred. But, as many of the same critics acknowledge, a clear provision in US copyright law allows for an infringement action before fixation takes place “[i]n the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission.” It’s an important distinction that represents lawmakers’ understanding of the unique concerns surrounding a live broadcast that loses most of its value immediately after its initial airing.

Section 411(c) of the Copyright Act provides that a copyright owner may bring an infringement action related to an unregistered work, and recover statutory damages for an unauthorized use, when the work is part of a live broadcast. Known as the “live broadcast exemption,” the Committee on the Judiciary explained that it “is intended to deal with the special situation presented by works that are being transmitted ‘live’ at the same time they are being fixed in tangible form for the first time,” such as “sporting events, concerts, theatrical presentations and news and public affairs programs.” The section goes on to list two requirements for obtaining statutory damages, including service of an “Advance Notice of Potential Infringement” at least 48 hours before the work is transmitted, and registration of the work within three months after its first transmission.

While it’s encouraging that Showtime’s injunction has already resulted in some of the targeted websites shutting down or offering links to legal viewing options, it’s likely that live-streaming apps will once again draw thousands of would-be paying customers towards unauthorized streams. Unfortunately, because of the massive paydays coming to McGregor and Mayweather, many who seek out illicit streams will justify the infringement by figuring it won’t hurt to take a few dollars out of their deep pockets. But as a recent article on MMA and boxing-related piracy points out, illegal feeds take money away from far less affluent athletes and from the organizations that make their careers possible.

Identifying and shutting down live streams that will inevitably appear (and reappear) via the likes of Periscope and Facebook Live is an uphill battle. Whereas Showtime’s injunction can address known infringing-enabling services and the websites they facilitate in the days and weeks leading up to the event, when the fight bell rings, it becomes impossible for the network and its affiliates to effectively play whack-a-mole with the surge of unauthorized streams.

As Ultimate Fighting Championship (UFC) CEO Lorenzo J. Fertitta explained in his testimony before the House Judiciary Committee nearly a decade ago, the content offered during PPV events is not only extremely valuable, but extremely perishable. Section 411(c) exists because once a popular event is over, the value is gone, and rights owners must have a way to combat potentially devastating infringement.

But Section 411 was enacted at a time when the current landscape of live-streaming app piracy (and the internet for that matter), could not have been anticipated. It’s a problem that requires attention not only from the rights holders and networks airing the events, but from the social media platforms that host the applications. Perhaps a Content ID system that would recognize and kill unauthorized streams of big ticket/PPV events is in order. But don’t expect the platforms to jump at the opportunity to implement such anti-piracy mechanisms, as they and their supporters are quick to label them ineffective and unconstitutional. Unfortunately, until a better system is put in place to supplement Section 411, every preeminent PPV fight will be predicted to be the most pirated event ever.