Can You Sue For Copyright Infringement Before It's Actually Happened?
from the pre-crime dept
A few months ago, we wrote about a lawsuit filed by a boxing promoter that sued UStream for not taking down streams of a boxing match fast enough. The promoter claims that because it warned UStream ahead of time to block these streams, it should have been faster about deleting them. That case is still ongoing and headed to trial, but in another story of boxing and streaming, we now have an attempt at creating a legal violation of pre-crime copyright infringement. It appears that HBO and Showtime have decided to pre-sue two sites that it claims are planning to stream the big Floyd Mayweather/Manny Pacquiao boxing match. If you've somehow been under a rock, this fight is getting a ton of publicity and is set to happen this weekend.Yet, the two big broadcasting companies that will be showing the fight, Showtime and HBO, feel that they can sue ahead of time, according to the lawsuit [pdf] -- which raises a ton of legal questions. And it seems that many of those questions could be answered with a basic "Uh, no, you can't do that."
First off: can they sue over a copyright on content that simply doesn't exist yet? HBO and Showtime say, no problem, that they'll have it eventually:
Plaintiffs intend to register the copyright in the Coverage, as joint authors, within three months after May 2, 2015.But then there's the bigger question: can these websites be sued for breaking the law some time in the future? It seems to raise issues a la "pre-crime" and Minority Report. Yes, the sites make it pretty clear they're going to try to stream the fight, but what's the actual infringement before it happens? You can't sue over theoretical infringement. You have to show actual infringement. But HBO and Showtime seem to have made up a new form of copyright infringement: "anticipated infringement."
Defendants’ anticipated infringement will cause Plaintiffs severe and irreparable harm.This leads to odd statements in the lawsuit about future events that simply haven't happened yet:
Plaintiffs are informed and believe and on that basis allege that Defendants will materially contribute to direct infringement of their rights in the Coverage by others, including without limitation third parties from whom Defendants acquire the infringing stream and third parties who use other websites to redistribute the infringing stream from Defendants’ websites.Perhaps it doesn't matter in the grand scheme of things: on Saturday, the event will happen and these sites will or won't stream the boxing match. Maybe the lawsuit scares them off and they don't stream the match -- and then the lawsuit can be easily dismissed. Or, if they do, HBO and Showtime amend the complaint to move the future tense to the past tense and all is good. Assuming HBO and Showtime believe this is the case, then the lawsuit serves as something of a possible deterrent to the sites, showing that HBO and Showtime are so serious about potentially suing them, that they already have. Still, it seems somewhat questionable to sue over infringement that everyone readily admits has not yet happened in any way, shape or form.
And, don't get me started on the question of whether or not merely embedding a stream hosted somewhere else should be seen as direct infringement, but that's a discussion for another day...
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Filed Under: anticipated infringement, copyright, floyd mayweather, lawsuit, manny pacquaio
Companies: hbo, showtime
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Response to: Anonymous Coward on Apr 29th, 2015 @ 8:15am
But hypothetically, if you snuck into a sporting event and recorded it without getting caught, and there were no weird stipulations on the fine print of the implied contract your ticket represents; you would own the copyright on your own recording.
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Re: Response to: Anonymous Coward on Apr 29th, 2015 @ 8:15am
A sporting event is full of random acts and IS NOT fully planned. If it is planned (and I'm sure a whole lot of broadcasters would try to make this argument) then betting on them would be moot and would incur the wrath of other more criminal laws on the ones who 'planned' them.
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Right...so....
So...Monday?
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... and there's a statement to be laughed out of court...
There is no financial damage for which monetary penalties will not make them whole.
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Re: ... and there's a statement to be laughed out of court...
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If they are smart
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Slippery slope...
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That's funny.
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Fixed it for you
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This is the best argument ever. Unfortunately, the answer is going to be "Shut the fuck up, little person! Copyright is for Corporations, not for the likes of *you*! Laws only apply to people at *your* level, not ours!"
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Corporations are Persons.
Therefore Copyright is for Corporations.
Humans are worker drones, not persons.
Humans running corporations get personhood transitively from their association with the corporation.
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Public Domain v. Disney, et al.
Although copyright duration is currently "limited" to life plus 70 years, Plaintiff's are informed and believe and on that basis allege that Defendant's future extensions will extend the duration every time the anticipated future extensions occur and thus make copyright duration unlimited.
Defendant's anticipated extensions of the limited duration of copyright indefinitely will cause the Plainiff's severe and irreparable harm.
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Not to mention they might lose out on some money relating to the game, but the public loses out on a whole lot more when copyright is extended time and time again, so if their 'harms suffered' are large, then the harms suffered by the public are downright incalculable.
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no, the court has time and time again affirmed you can not civilly sue for damages that have not happened. this is nothing more than their Kafkaesque attempt to intimate through lawyers and fee's much like how the mafia intimated store owners.
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Unless it is a boy named Sue, in which case Johnny Cash's estate, or whomever wrote that song would be suing.
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Yes, kids, a "restraining order" is possible in advance, given evidence.
The rest of the suit is just wishing, and that's standard too.
I expect to see this granted.
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Re: Yes, kids, a "restraining order" is possible in advance, given evidence.
But then the rest of their request for relief is highly problematic. Cutting off their host, registrar, DNS Servers (site blocking!), and other providers prior to the crime occuring is a bit problematic. But maybe you can say the threats are just so heinous that they deserve extra special shutdown powers to make sure the stream doesn't happen, and just in case, keep them down forever (the suit doesn't specify allowing them back on after the threat has passed).
But then they ask for damages and your whole argument goes out the window. Because you can't get "actual damages, profits, or statutory damages" for infringement that has not yet happened (and this suit is supposed to be avoiding, according to your argument). If this suit is for an injuction to prevent the streaming, then they would ask for that. Wasting the courts time by asking for damages isn't going to help them win the judge over.
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Re: Yes, kids, a "restraining order" is possible in advance, given evidence.
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I anticipate
If I had to guess 1 company, I'd probably go with AT&T, since they are my ISP and are constantly trying to screw someone over.
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The "irreparable harm" is income that will NOT be received.
Infringement is illegal. Publicly advertising intent is valid evidence.
This is neither difficult to understand nor outside of usual.
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Re: The "irreparable harm" is income that will NOT be received.
Irreparable harm can ONLY be applied AFTER the instant of something occurring.
Asking for damages and 'just compensation' before ANYTHING has occurred no matter whether PUFFERY was published or not by the sites is irrelevant.
There has been no infringement, no criminal activity (your terminology of 'illegal' shows how little you actually know) nor evidence of any form.
All this is is another reason why the USA needs tort reform VERY quickly.
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Re: The "irreparable harm" is income that will NOT be received.
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The "irreparable harm" is income that will NOT be received.
Infringement is illegal. Publicly advertising intent is valid evidence.
This is neither difficult to understand nor outside of usual.
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Re: The "irreparable harm" is income that will NOT be received.
This is neither difficult to understand nor outside of usual."
Ah, ok then, so the next time you state something like "I'm gonna kill that guy" or "I'd beat so-and-so like a dog!" you will be OK with being hauled off on the spot and summarily jailed without having actually DONE any of that, right? RIGHT?
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Re: Re: The "irreparable harm" is income that will NOT be received.
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Re: The "irreparable harm" is income that will NOT be received.
That's where they fail. Miserably.
That is the part that is both difficult to understand and unusual.
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Re: The "irreparable harm" is income that will NOT be received.
Moreover, if the stream doesn't happen because of the lawsuit, the irreparable harm never occurs, therefore no longer justifying the lawsuit. This is why, aside from terrorism cases, the first amendment rights mean you can't be charged for crimes before you commit them.
You can get a restraining order because of threats, but you can't be convicted of battery unless you follow through.
Also...not sure what "bt (some of) which others will get by the infringement." was supposed to mean because even if I assume bt = but, It doesn't make sense.
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Congratulations, you just invalidated consumers' choice to not shop, not purchase or not give money to an organization or retailer in favor of other legal alternatives. What a joke.
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Re: The "irreparable harm" is income that will NOT be received.
Mangled English aside, what you're describing is not the loss of anything, it's merely not getting as much as you wanted. That's not harm. No business is automatically entitled to income, you have to actually convince people to give it to you.
"Infringement is illegal. Publicly advertising intent is valid evidence."
Can you name for us any other situation where showing mere intent will get you charged with the actual crime itself? I don't think you'll be able to, in which case you seem to be claiming that copyright law is some special little flower that deserves far harsher enforcement than any other crime. Is that really your position?
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Can we have them arrested, please ...
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Sports events are performances, just like live theatre. Thus copyright laws imply.
Someone stating that they intend to break the law is absolutely something you can have a lawsuit about to try to prevent.
Complaining about it being precrime or not copyrightable in the first place just demonstrates to the world how crazily misinformed you are about the topics, which is yet another reason no one with any sense takes anything this site says seriously. Your like the flatearthers and climate change denialists of the legal world.
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That's actually kind of funny since more than half of that comment is opinion.
But anyways, do you care to cite a civil case where the court upheld a case based on "intent to commit a tort" in which the tort never actually occurred? Like I said, I would love to read that one.
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Where in the article does it say that copyright laws do not apply here? The first couple of comments may have questioned whether a sports event should be copyrightable, but no one is saying that they are not copyrightable.
Someone stating that they intend to break the law is absolutely something you can have a lawsuit about to try to prevent.
Is it? I mean, I know that any idiot can sue anyone for any reason, but do you have any citation where such a case was actually upheld by the court? I would be interested in reading that.
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I've never heard of someone "performing" sports; I always hear about people playing them.
Theatre has a script. It's written and learned and rehearsed, and eventually performed. It (debatably, some works of theatre more than others) has artistic and literary value. But sports, while they obviously have entertainment value, possess none of these qualities. There is no "authorship" in playing sports, no creative work being performed.
...with one obvious exception. Wow, it's a bit disturbing to suddenly realize that professional wrestling is actually deserving of copyright protection! o_0
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They are indeed just like live theater -- and copyright doesn't apply to either of them. Copyright only applies once a work has been "fixed in a tangible medium". It never applies to live performances.
Recordings of those performances are copyrighted, but the copyright is owned by the person who made the recording, not the people who put on the performance.
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Finally! Someone who actually friggin' "gets it!"
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Yes and I should have made that clearer in my comment when I said "but no one is saying that they are not copyrightable."
I always laugh at the legalese they put into sports broadcasts where they claim that "disseminating the accounts and descriptions without express permission is prohibited" because besides being a load of hogwash, it's also copyfraud.
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F-
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Oh, wait.
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It was called The Minority Report iirc.
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It was called Dumb and Dumber To.
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http://www.totootwo.com/
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In Israel, probably not
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Clearly willan been a valid case
They could have got away with it if they'd known about Dr. Dan Streetmentioner...
"Defendents wioll haven be infringing....."
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Are they saying the fight is fixed?
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If a crime never happens can one sue?
It has after all been accused and condemend for an event that never took place.
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"a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act, e.g., to make restitution to an injured party."
I know because I was sued before publication for my Lord of the Rings chronology, Untangling Tolkien. Instead of fighting over that, I agreed to delay publication until our dispute was settled. I won when the Tolkien estate, fearing it would loose, bailed out at summary judgement and the judge tossed their lawsuit out 'with prejudice.'
This case is an even better illustration than mine. What needs protecting here is a sporting event whose primary value is watching it live. It's value is far less if those doing the broadcast could do nothing until their copyright application was approved weeks later. By then, anyone who wanted could know who won.
That's another factor at play. According the Berne Convention, a copyright exists from the moment copyrightable material is created in permanent form. If you're writing a novel, even word in that novel is copyrighted the instant it appears under your pen or on the screen of your computer. Someone who was stealing your keystrokes as they were made would be violating your copyright if they attempted to make any use of it.
TechDirt really ought to make an effort to understand copyright law before it publishes an article like this.
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However, it would seem to me that the lawsuit would have to be dismissed if the defendants don't actually try to re-stream the event... or, if they are streaming a feed from someone they've planted in the audience who is filming independently of the Showtime/HBO broadcast.
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So the judge can restrain the site from rebroadcasting the event...
But if no copyright exists at this time, as the fight hasn't happened and been broadcast in the first place, then exactly what copyright is being infringed upon?
Can I sue for copyright that exists within the confines of my own head?
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