Can You Sue For Copyright Infringement Before It's Actually Happened?

from the pre-crime dept

Wed, Apr 29th 2015 8:09am — Mike Masnick

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...

263446770 SHOWTIME v JOHN DOES Complaint and Exhibits (PDF)263446770 SHOWTIME v JOHN DOES Complaint and Exhibits (Text)

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Filed Under: anticipated infringement, copyright, floyd mayweather, lawsuit, manny pacquaio
Companies: hbo, showtime

81 Comments

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Anonymous Coward, 29 Apr 2015 @ 8:15am

Sporting events should not be copyrightable. Period. To say otherwise is utter insanity.
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Anonymous Coward, 29 Apr 2015 @ 8:20am

ya know if you can copyright an activity, which all sports are, I wonder if i could copyright the missionary position and then sue legal brothels for infringement?
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Berenerd (profile), 29 Apr 2015 @ 8:21am

Right...so....
"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..."

So...Monday?
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Mason Wheeler (profile), 29 Apr 2015 @ 8:23am

Re:
Yeah, how does that even make sense? Copyright is for works of creative authorship, which sports simply aren't. Under what legal doctrine is copyright a thing in the absence of creative authorship?
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Anonymous Coward, 29 Apr 2015 @ 8:23am

... and there's a statement to be laughed out of court...
> Defendants’ anticipated infringement will cause Plaintiffs severe and irreparable harm.

There is no financial damage for which monetary penalties will not make them whole.
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beech, 29 Apr 2015 @ 8:24am

Response to: Anonymous Coward on Apr 29th, 2015 @ 8:15am
I believe there is precedent that sporting events are not copyrightable since they are"facts"of things that have happened, not creative works. However, other parts of the broadcast are copyrightable, announcers, commentary, all the little on screen factoids,etc. I assume they can probably try to claim copyright based on how the cameraman framed the shots.

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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Spaceman Spiff (profile), 29 Apr 2015 @ 8:26am

If they are smart
If they are smart, these sites won't stream the match, and then they will sue the pants off of HBO and Showtime for prior restraint, or whatever is appropriate to show these assholes that they don't own the world! I think that about $100 million USD would be appropriate!
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Anonymous Coward, 29 Apr 2015 @ 8:28am

Re: Re:
The event itself isn't what will be copyrighted. The recording and broadcast of the event is the copyrightable material.
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Greevar (profile), 29 Apr 2015 @ 8:29am

Slippery slope...
Well, they already claim hypothetical damages. Is hypothetical infringement any different?
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Anonymous Coward, 29 Apr 2015 @ 8:29am

In that case, I would like to preemptively report all future comments by anonymous trolls who repeat the phrase, "Mike Masnick just hates it when copyright law is enforced in advance of the occurrence of a violation."
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Anonymous Coward, 29 Apr 2015 @ 8:31am

Wait, if they can sue for anticipated copyright, then can we sue for anticipated public domain? I mean, technically all copyrighted works do eventually fall into the public domain, right? If their whole argument is hinging on eventualities, then why can't we do so for the public domain which is a definite eventuality?
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RD, 29 Apr 2015 @ 8:35am

Re:
"Wait, if they can sue for anticipated copyright, then can we sue for anticipated public domain? I mean, technically all copyrighted works do eventually fall into the public domain, right? If their whole argument is hinging on eventualities, then why can't we do so for the public domain which is a definite eventuality?"

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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Just Another Anonymous Troll, 29 Apr 2015 @ 8:40am

Re: ... and there's a statement to be laughed out of court...
If the harm cannot be repaired, then why are they suing for reparations? Maybe the judge should throw it out because of that.
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mr. sim (profile), 29 Apr 2015 @ 8:50am

can you sue for infringement that has not occurred yet?

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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Anonymous Coward, 29 Apr 2015 @ 8:57am

Yes, kids, a "restraining order" is possible in advance, given evidence.
Those sites are advertising intentions.

The rest of the suit is just wishing, and that's standard too.

I expect to see this granted.
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dakre (profile), 29 Apr 2015 @ 8:59am

I anticipate
I'm anticipating that large companies are going to screw me over, so let me sue all of them for anticipated punitive damages.

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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Anonymous Coward, 29 Apr 2015 @ 9:07am

The "irreparable harm" is income that will NOT be received.
Income that should go to those who paid to make the content, but (some of) which others will get by the infringement.

Infringement is illegal. Publicly advertising intent is valid evidence.

This is neither difficult to understand nor outside of usual.
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Anonymous Coward, 29 Apr 2015 @ 9:10am

The "irreparable harm" is income that will NOT be received.
Income that should go to those who paid to make the content, bt (some of) which others will get by the infringement.

Infringement is illegal. Publicly advertising intent is valid evidence.

This is neither difficult to understand nor outside of usual.
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RD, 29 Apr 2015 @ 9:20am

Re: 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."

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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Anonymous Coward, 29 Apr 2015 @ 9:20am

Re:
If you take someone through court for copyright infringement that hasn't occurred yet, it seems like you could sue for defamation. The alleged crime doesn't happen, they accused the company of a crime it didn't do and has to defend itself from. All the proof for defamation is already in the court system.
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Peter (profile), 29 Apr 2015 @ 9:22am

Can we have them arrested, please ...
... for something they might do in the future? We don't know for sure would they would do if the police didn't stop them, but locking a couple of managers away in prison for a short time is small price to pay to keep our children safe. Right?
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Anonymous Coward, 29 Apr 2015 @ 9:27am

Re: Re: Re:
Yes. Essentially the commentary, camera angles, etc. are covered.
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Anonymous Coward, 29 Apr 2015 @ 9:30am

Re:
no, the court has time and time again affirmed you can not civilly sue for damages that have not happened.
You can't win, but you can sue--which has already happened in this case. (The definitions I've found for "sue" indicate it refers to filing a lawsuit. So even if the court rejects it right away, the defendent would have been sued.)
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Anonymous Coward, 29 Apr 2015 @ 9:37am

You can always count on TechDirt for comedy when it comes to saying crazy stuff about copyright they don't understand.

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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RD, 29 Apr 2015 @ 9:50am

Re:
You are wrong in every single line of this comment. None of what you state is the case.
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PRMan, 29 Apr 2015 @ 9:51am

Re: Re: Re:
Which is why they are happy to let anyone in and make their own copyrighted broadcast...
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Anonymous Coward, 29 Apr 2015 @ 9:52am

I don't like people playing the role of grammar police, but if you're going to be a condescending prick, you might want to double check your writing before you hit post. You wouldn't want to apply that your ignorant, or anything.
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Gwiz (profile), 29 Apr 2015 @ 9:53am

Re:
Sports events are performances, just like live theatre. Thus copyright laws imply.

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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Mason Wheeler (profile), 29 Apr 2015 @ 9:59am

Re:
Sports events are performances, just like live theatre. Thus copyright laws imply.

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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John Fenderson (profile), 29 Apr 2015 @ 10:00am

Re:
"Sports events are performances, just like live theatre. Thus copyright laws imply."

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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James Burkhardt (profile), 29 Apr 2015 @ 10:07am

Re: Yes, kids, a "restraining order" is possible in advance, given evidence.
Yes, kids, a "restraining order" is possible in advance, given evidence.
Alright, so you are aruguing that a Restraining Order issued based on threats is the basis for this lawsuit? OK. I can see that with that based on the idea that you can get a restraining order based on threats of violence that you could get an injunction against the streaming. Of course, they are already planning to commit a crime, so I am not sure how the injuction and restraining order would be likely to stop them.

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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Anonymous Coward, 29 Apr 2015 @ 10:09am

Re: Re:
They add in those fancy logo screens and transitions... creative effort any monkey with adobe effects could do, but whatever...
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RD, 29 Apr 2015 @ 10:09am

Re: Re:
"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."

Finally! Someone who actually friggin' "gets it!"
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James Burkhardt (profile), 29 Apr 2015 @ 10:10am

Re:
Your comment might be more useful if you either replied to the comment you are referring to, or quoted the region of the article your are referring to, because this just confused me.
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Anonymous Coward, 29 Apr 2015 @ 10:14am

Re: The "irreparable harm" is income that will NOT be received.
...and shutting them down before they actually infringe on anything provides for damages how?

That's where they fail. Miserably.

That is the part that is both difficult to understand and unusual.
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Gwiz (profile), 29 Apr 2015 @ 10:14am

Re: Re:
Recordings of those performances are copyrighted..

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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Baron von Robber, 29 Apr 2015 @ 10:15am

Re:
You forgot to cite references.

F-
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Anonymous Coward, 29 Apr 2015 @ 10:16am

Re:
Easy enough - if they want to claim damages from infringement today, all they need to do is produce the copyright...

Oh, wait.
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DannyB (profile), 29 Apr 2015 @ 10:22am

Re: Re:
Copyright is for Persons.
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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James Burkhardt (profile), 29 Apr 2015 @ 10:28am

Re: The "irreparable harm" is income that will NOT be received.
But publicized intent is not action. This lawsuit asks for remedies that can not and do not apply unless there is action (for one it asks for damages). Lets say this suit works and they not only get an injunction, but get the site taken offline. Damages do not apply, and should not have been included. This ignores questions of whether you can take a site offline for copyright infringement that hasn't happened yet.

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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Anonymous Coward, 29 Apr 2015 @ 10:51am

I saw a documentary about something like this the other day.

It was called The Minority Report iirc.
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Anonymous Coward, 29 Apr 2015 @ 10:52am

Re:
Are you denying the demonstrable fact that Mike Masnick and Google hate it when copyright law is enforced?

That's funny.
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Anonymous Coward, 29 Apr 2015 @ 10:54am

Re: Re:
And you're in denial. Everything he said is absolute fact.
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Anonymous Coward, 29 Apr 2015 @ 10:56am

Re:
I saw a movie the other day about Techdirt pirates.

It was called Dumb and Dumber To.
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Anonymous Coward, 29 Apr 2015 @ 11:01am

Re: Re:
HTH

http://www.totootwo.com/
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Anonymous Coward, 29 Apr 2015 @ 11:05am

Re: Re:
Mike Masnick and Google hate it when copyright law is enforced improperly?

Fixed it for you
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Gwiz (profile), 29 Apr 2015 @ 11:31am

Re: Re: Re:
Everything he said is absolute fact.

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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RonKaminsky (profile), 29 Apr 2015 @ 11:35am

In Israel, probably not
In Israel, in the same decision which considered fair use a right of the public rather than a defense, the judge states as the second point of her final summary that "it is questionable whether it is possible to grant an injunction preventing copyright infringement on a work which hasn't yet been created".
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Anonymous Anonymous Coward, 29 Apr 2015 @ 11:37am

Re: Re:

"The definitions I've found for "sue" indicate it refers to filing a lawsuit."

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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Anonymous Coward, 29 Apr 2015 @ 11:38am

Re: Re:
Recordings of those performances are copyrighted, but the copyright is owned by the person who made the recording
Only if they did something creative, though. The standard is pretty low (e.g. "creative" camera positioning/panning/etc. could count) but if you're just holding a camera in whatever seat you happened to get assigned, the recording might not be copyrighted.
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Anonymous Coward, 29 Apr 2015 @ 12:02pm

Re:
Mike Masnick just will hate it when copyright law is going to be enforced in the near future.
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Anonymous Coward, 29 Apr 2015 @ 12:17pm

Re:
Or sue for future damages when the works don't enter public domain because of, oh I don't know, another extension of copyright?
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Anonymous Coward, 29 Apr 2015 @ 12:33pm

Re: Re:
That's: "damages for a hypothetical work that hasn't been able to have been realised because of the willful prevention of existing works from ever being used as a source for said hypothetical work by retroactivly extending the copyright contracts"...
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Not an Electronic Rodent (profile), 29 Apr 2015 @ 1:13pm

Clearly willan been a valid case
Defendants’ anticipated infringement will cause Plaintiffs severe and irreparable harm

They could have got away with it if they'd known about Dr. Dan Streetmentioner...
"Defendents wioll haven be infringing....."
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Quiet Lurcker, 29 Apr 2015 @ 1:15pm

Re: Re:
And with that one realization, we can all wave 'bye-bye' to plaintiffs' standing as it flies out the windows...and to their case as they bring suit a second time, only to have that tossed for double jeopardy.
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Chris-Mouse (profile), 29 Apr 2015 @ 1:42pm

Copyright only exists once the work is created in a fixed format.

Are they saying the fight is fixed?
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James Burkhardt (profile), 29 Apr 2015 @ 2:15pm

Re: Re: Re:
Double jepordy only applies to criminal complaints, and only if a verdict is reached.
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Anonymous Coward, 29 Apr 2015 @ 2:15pm

Re:
But you can sue for injunctive relief (i.e. an order prohibiting "imminent" infringement). The better question is whether you can sue when you haven't yet registered the copyright, which is generally a prerequisite to filing suit.
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Anonymous Coward, 29 Apr 2015 @ 2:19pm

Re: Yes, kids, a "restraining order" is possible in advance, given evidence.
This is true, but the Copyright Act says you have to at least submit your application before you can file suit. So they might have another procedural hurdle here.
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Zonker, 29 Apr 2015 @ 2:46pm

Re: Re:
I propose we sue against all future extensions of the copyright act under the grounds that those future extensions will eventually violate the constitutional provision that copyrights must be for a limited time.

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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Anonymous Coward, 29 Apr 2015 @ 3:12pm

Re: Re: The "irreparable harm" is income that will NOT be received.
...Not the best example there, because there are laws against threatening people. They're separate from the laws for actually carrying out the threats, though, so your point remains.
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That One Guy (profile), 29 Apr 2015 @ 3:50pm

Re: Re: Re:
Moreover I'd say the odds that there will be at the very least an attempt to once again retroactively extend copyright is much more likely to occur than some random site streaming a game(one has claimed to intend to do so, the other has shown historically that they will do so), so if their argument of a pre-preemptive ruling in their favor is acceptable, the one against them for undercutting the public interest seems to be even more valid.

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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Anonymous Coward, 29 Apr 2015 @ 5:49pm

Re:
Income that will not be received is now considered irreparable harm?

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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Anonymous Coward, 29 Apr 2015 @ 5:50pm

Re: Re: Re:
And you're the same person posting from a different IP address. Seriously, get a life.
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JMT (profile), 29 Apr 2015 @ 6:11pm

Re:
You can't copyright an activity, but you can copyright the recording of an activity, which is the case here.
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JMT (profile), 29 Apr 2015 @ 6:21pm

Re: The "irreparable harm" is income that will NOT be received.
"Income that should go to those who paid to make the content, bt (some of) which others will get by the infringement."

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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M. Alan Thomas II (profile), 29 Apr 2015 @ 6:25pm

Re: Re:
Until and unless sports broadcasts become slavish copies containing the entire field in 3D, leaving all other options up to the viewer, the broadcasters are making at least the bare minimum decisions of zoom, framing, angles (especially as they cut from one to the other), &c. Not to mention, y'know, the commentary.
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M. Alan Thomas II (profile), 29 Apr 2015 @ 6:26pm

Re: Re: Re:
As has been well-established by a certain photo, humans can receive copyright for doing things that monkeys can do just as well.
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M. Alan Thomas II (profile), 29 Apr 2015 @ 6:27pm

Re:
Porn is copyrighted. Sex is not.
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M. Alan Thomas II (profile), 29 Apr 2015 @ 6:31pm

There are plenty of things that you can sue in advance of, given certain evidence and circumstances. Speech is not one of them: that's called "prior restraint."
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G Thompson (profile), 29 Apr 2015 @ 11:29pm

Re: Response to: Anonymous Coward on Apr 29th, 2015 @ 8:15am
Actually any weird stipulations on the 'implied' contract (which is another legal ambiguous problem itself) would in no way diminish the copyright the person held in the recording they made themselves.

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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G Thompson (profile), 29 Apr 2015 @ 11:30pm

Re: Re:
well maybe porn is copyrightable :)
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G Thompson (profile), 29 Apr 2015 @ 11:39pm

Re: The "irreparable harm" is income that will NOT be received.
and you have no idea how law nor procedures actually work.

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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Stricture, 30 Apr 2015 @ 2:19am

If a crime never happens can one sue?
So if the site receieves an injunction and does not stream the match can it then sue for damages? or defamation? or misscarraige of justice?

It has after all been accused and condemend for an event that never took place.
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John Fenderson (profile), 30 Apr 2015 @ 7:58am

Re: Re:
Unless the porn is in the form of a live sex show.
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Michael W. Perry, 1 May 2015 @ 8:29am

You can mostly certain sue for copyright infringement before publication or in this case broadcast. It's merely a matter of demonstrating something is or is likely to be illegal and getting an injunction to halt it. Injunction is defined as:

"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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Anonymous Coward, 1 May 2015 @ 9:52am

Re:
The law in question appears to be 17 USC 411(c).

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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Anonymous Coward, 1 May 2015 @ 11:18am

Re:
According the Berne Convention, a copyright exists from the moment copyrightable material is created in permanent form.

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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Anonymous Coward, 1 May 2015 @ 4:39pm

Re: Re: Re: Re:
Otherwise, no one would play sports.
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Anonymous Coward, 4 May 2015 @ 7:58am

Re: The "irreparable harm" is income that will NOT be received.
Except its not irreparable, because the TV companies will just steal money from a different creator to make up the difference...
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Anonymous Coward, 4 May 2015 @ 8:00am

Ever get the feeling that someone at HBO was watching the movie Minority Report, but there was an outage about 30mins from the end so they thought "hey thats a good idea..pre-emptive punishment!".
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