UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone

from the fight! dept

In the United States, the DMCA has a "notice and takedown" process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:

The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.

I added the bolded section for emphasis. Why? Well, many in the copyright industries hate the notice and takedown system because it requires them to notify service providers of individual cases for infringement. That requires work, of course. Work that these service providers very much do not want to do. Instead, many propose a notice and stay down system. What that would do would be to allow the copyright holder to essentially notify a service provider of infringing material once, after which it would be up to the service provider to do the policing of that content on their own sites. This was recently exemplified by the UFC's COO, Lawrence Epstein.

The DMCA is a “very reactive type of protocol,” Epstein notes, since the law places the onus on the copyright holder to act. This presents a timing problem for a live sports broadcast. The highest value for that broadcast—especially one distributed through a PPV arrangement—is when the event happens. A notice and takedown can take several minutes, even a half hour. By the time an illegal stream is removed, it could be too late. The Poirier-McGregor match lasted only about five minutes before McGregor suffered a leg injury and Poirier was credited with a TKO victory.

“It’s not an appropriate remedy,” Epstein charges, adding that the “vast majority” of the piracy is taking place on “big platforms like Facebook, YouTube and Twitter.” Epstein also stresses that “we see the same people doing it. There are repeat offenders who aren’t deterred by the process.”

The UFC would like to see the DMCA amended to include a “stay down system” whereby the copyright holder need only notify the service provider of infringing material. It would then become the obligation of the provider to monitor repeat infringers and prevent them from engaging in illegal streaming and other piracy on the provider’s platform. “These big platforms have to take responsibility for what happens on their platforms,” Epstein asserts. “It can’t be reactive.”

For context only, the latest UFC PPV event raked in $125 million. And, to be clear, I can sympathize with Epstein on the concept of how this all works for live-streamed, pay-per-view broadcasts. It's not the same policing a movie on the internet as it is policing infringing live-streams.

But, and this is the key part, that is a business model issue, not an issue requiring the wholesale retrofit of the DMCA. Put another way, if the notice and takedown system is overall beneficial for most of the public interest, altering it is not an appropriate remedy simply because it isn't working for the UFC.

And there are very good reasons why a notice and takedown system is better for nearly everyone than a notice and stay down system. For starters, while Epstein invokes the "big players" like Facebook and the like, those big entities are the ones that at least would stand a chance of operating in a notice and stay down system. They have the money, tools, and people to throw at the problems such a system would create. But what about smaller companies and sites? Startups? How in the world are they going to police other people's content for them? They won't and the liability such a system would create will keep startups from every... you know... starting up.

Beyond that, it's not like the "stay down" part works well in practice even when tried. The uploading of content by one person that is infringing does not make the uploading of it by another infringing. Viacom found that out directly by suing Google over a bunch of YouTube videos... that Viacom staff uploaded on purpose. In an effort to stop piracy, Viacom attempted to stop promotion of its own material by its own staff. If the companies responsible for content can't properly police copyright infringement of that content, what hope do service providers have?

And, as one professor explains to Yahoo! Sports, there is all of that plus issues of fraud and censorship that suddenly are opened up by a stay down system.

Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients in the sports and entertainment law industries, agrees that placing the burden on copyright owners to police copyrights creates persistent challenges for owners in a world where streaming has become so omnipresent. “Given the enormous amount of copying and performing that occurs online,” Vacca explains, “it’s understandable that content owners want to shift that burden to other actors in the online ecosystem.”

Yet Vacca also sees “countervailing concerns” that could arise ”if the law is changed to make it too easy to have materials taken down.” He cautions that some copyright owners make infringement claims “not to protect their copyright, but to censor legitimate uses of copyrighted materials, such as critical commentary or parody.” Vacca adds that placing the burden on platforms “has the potential to disadvantage startup competitors by imposing additional costs on them that are more difficult to absorb than for established companies such as Facebook, Twitter and YouTube . . . This could have a negative effect on innovation for online platforms.”

So, the open question in summary is: should we really be altering the DMCA that has allowed for so much innovation and flourishing within the online ecosystem just so the UFC can possibly make even more than the $125 million per event it's making now? That feels like a question with an obvious answer.

Filed Under: copyright, dmca, dmca 512, lawrence epstein, notice and staydown, notice and takedown
Companies: ufc

UFC Broadcast Partner Goes Pay-Per-View And Pushes Fans To Piracy

from the yay? dept

It will not come as news to the regular Techdirt reader that the folks behind Ultimate Fighting Championship truly hate pirate streams of its fight-nights. For years now, UFC has done everything from punishing some of its own biggest fans to petitioning the government and courts to strictly block any unauthorized broadcasts. In other words, UFC's stance is that it will take any action necessary to prevent people from pirating its product.

In which case, UFC may want to have a word with at least one of its broadcast partners. BT Sport, the UFC's broadcast partner in the UK, recently made the decision to suddenly hit its subscribers with an additional pay-per-view fee to watch the bigger UFC matches. The move was met with catastrophic results.

BT Sport, the broadcasting rights owner for UFC (Ultimate Fighting Championship) events in the UK has decided that it would be a good idea to charge its subscribers an additional fee to watch big matches. BT Sport has been offering UFC content in the UK since 2013, with the regular subscribers experiencing no weird or optional limitations. However, the company decided to take a turn this Saturday with the UFC 239 match between Jon Jones and Thiago Santos. To watch the fight, subscribers were asked for an additional “pay per view” fee of £19.95.

Instead of seeing more money flowing in, BT Sport was met with rejection as its regular subscribers decided to turn to piracy and watch the match through illicit channels. In addition to this momentary failure, BT Sport experienced subscription cancellations, as many were paying for a package only to access UFC events. Obviously, this didn’t play out the way that the broadcasting platform thought it would, and it serves as an example for all live sport streaming platforms which could be processing and evaluating such moves right now.

That this happened is useful for pointing out a number of things. For starters, it again highlights that piracy is a function of price and convenient availability. It's one thing to lock a UFC match behind a broadcast subscription, but to then slap a PPV fee on those already subscribing is obviously going to piss people off. And, more to the point, change the equation as to the price and availability of the UFC match. It should come as no surprise, then, that this pushes the public to illicit channels to watch these fights.

That said, the levels at which this occurred and were able to be reported on were significant.

According to TorrentFreak, who highlighted the incident, several pirate IPTV service providers told them that there was a noticeable spike in the demand for BT Sport content during the weekend, and this was only the beginning.

Which brings us to the next lesson that should be learned here: if a broadcaster rather cravenly looks to extract money from current customers for something it hadn't previously charged for, and for which it is providing no additional new value, the slap back from customers is going to be swift and severe.

The subscribers of BT Sport packages did what they did not only out of choice but also as part of an agreed boycott that was organized on social media platforms like Reddit. By boycotting UFC 239, the subscribers hope that they will force the broadcaster to reconsider, and take PPV charging out of their strategy in the future. This is not the case for everyone though, as some express their satisfaction with the quality of the content and the experience of consuming it on pirating platforms.

Which brings us to a third lesson that should be learned: once you push people to piracy, you might not be able to get them back. Pirating UFC fights, and many other things as well, is something of a pain in the ass. All things else being equal, people generally want to go through the proper channels for their entertainment. But all else is not equal and when people discover the low-level pain that is pirating, it may cause them to explore that avenue for all kinds of other entertainment.

All of this because BT Sport wanted to turn a previously-included sport into PPV? I would hope UFC would be discussing this with its broadcast partners, as concerned as it is about people not pirating its fights.

Filed Under: fighting, pay per view, piracy
Companies: bt, ufc

Harry Reid Wants To Attach Part Of SOPA To Surveillance Reform Bill

from the that-would-be-a-mistake dept

See the update at the bottom of this post.

Late last night I started hearing rumors that Senator Harry Reid was looking to slip a little something extra into the USA Freedom Act: a key part of SOPA. As you should know by now, last week, Reid surprised many by moving for a cloture vote on the USA Freedom Act. While still controversial in civil liberties circles, many are supportive of this bill as a good first step in surveillance reform -- including EFF and ACLU -- while others are perhaps reasonably concerned about what the bill actually provides. Yesterday, the big tech companies came out in favor of it.

However, yesterday evening I heard through the grapevine that Reid also had a little "gift" he was planning to add to the bill, and I've spent a big part of last night tracking down any details I could find. Basically, Reid wants to attach a part of SOPA to the bill: the felony streaming provisions. You may recall that this was the dangerous plan that was a part of SOPA and a companion to PIPA (though not directly in it) that would have turned merely streaming infringing works into a felony. This got a ton of attention after Fight for the Future created its Free Justin Bieber campaign, after noting that Bieber came to fame by streaming lots of videos of music he didn't license the rights to. Even after SOPA died, the White House still listed the felony streaming stuff in its big wish list. And, just a few months ago, the Justice Department told Congress it wanted streaming to be a felony too.

The reality is that this would be a pretty big expansion of criminalizing copyright infringement. As we explained years ago, there's a reason why "performance" isn't considered a felony in copyright law. Expanding the criminalization of copyright, especially for something as simple as streaming content puts a ton of people at risk. And yes, according to Harvard law professor Jonathan Zittrain, someone doing what Bieber did would face jail time, which is ridiculous.

So why is Reid suddenly doing this? What we've heard is that it's a "favor" to his friends at UFC -- Ultimate Fighting Championship -- who are based in Las Vegas, in Reid's home state of Nevada. Reid and UFC go back for years, with UFC being big supporters of Reid, and UFC has worked with Reid on a number of campaigns. UFC has also been one of the biggest supporters of expanding and abusing copyright law for years. The organization has sued its biggest fans, has sued streaming sites like Justin.tv (and lost) and even claimed copyright on videos it has no rights to, taken by fans.

So it's no surprise that with Reid and UFC being so chummy -- while UFC has staked out a strong public position to expand copyright criminalization -- that Reid would like to do this "favor" for his friends. But it's a massive slap in the face to the tech industry -- Reid's second such massive slap this year. Remember, earlier this year, after the tech industry had finally, finally gotten a few important pieces (not nearly enough, but a great start) for patent reform to the finish line, Harry Reid got a phone call from the trial lawyers and killed the whole thing? If he actually goes through with this plan, it will be yet another massive slap in the face to Silicon Valley. Perhaps that's the reputation Harry Reid wants. The Senator who gives out personal favors to friends, and stands in the way of innovation. I can't imagine that will go over well in the long run. Furthermore, it's almost as if Reid has totally forgotten what happened around SOPA. I can assure him that those who fought against SOPA have not forgotten.

The last I've heard on this so far is that Reid is still looking for a bit more support to attach this to the USA Freedom Act. Hopefully no one gives it to him, and this idea simply goes back in the trash can where it belongs.

Update: Senator Reid's office has posted a response to this story claiming that this is all spin from "Republicans who want to tank" the USA Freedom Act. That's not actually true. While I'm not going to reveal my (multiple) sources on this, Reid's explanation is not at all accurate. We confirmed this with multiple sources -- nearly all of whom are in favor of the USA Freedom Act. We did hear one rumor that there was an effort under way to get a Republican on board to support this plan, but we didn't report that because we couldn't get detailed confirmation on it. What we're now hearing from others, however, is that Reid's office is trying to point the finger directly at one specific Republican Senator, and we have a request in to his office to see if he wants to comment.

Filed Under: copyright, criminalization, felony streaming, harry reid, justin bieber, over criminalization, streaming, ufc, usa freedom act
Companies: ufc, zuffa

More On IP Arrow: Takedown Company's Boss Owes MPAA $15 Million And Clients Apparently Fine With Filing Bogus DMCA Notices

from the not-surprised,-but-still-disappointed dept

A few more details have been revealed about IP Arrow, the anti-piracy company whose DMCA notices were filled with links to content not owned by the companies it represents, including links to some rather dubious porn titles.

First off, it's hardly a company. IP Arrow is simply an "offshoot" of Morganelli Group LLC, the new home for its non-porn clients, as was pointed out by a commenter over at Torrentfreak.

This new-kid-on-the-block, hired-gun copyright enforcer named "IP arrow" appears to be a sock-puppet shell company owned by Joe Morganelli (Morganelli Group LLC)

Note that their client lists are virtually identical.

It looks like Joe Morganelli has transferred Lynda, Lionsgate, and Zuffa (UFC) to this new label "IP Arrow" while pornography is still carried under the old label "Morganelli Group".

The stats over at Google's Transparency Report bear this out. The last DMCA notice issued for Zuffa, Lynda.com or Lionsgate by Morganelli was on August 1st. Since that point, every DMCA notice issued has been for one company: LFP Video Group LLC. LFP stands for Larry Flynt Productions. IP Arrow's work for Lynda.com, Zuffa and Lionsgate begins on August 5th.

Unlike the shoddy work done for Lynda.com, Zuffa and Lionsgate, Morganelli's work on behalf of the porn publisher seems to be subject to some actual vetting. You can see the difference in the number of URLs taken down. Despite issuing takedowns for LFP at the same frequency as the other three clients, LFP notices have asked for the removal of far fewer URLs.


Even under the previous name, Morganelli's work for his "mainstream" clients was uniformly terrible. Whatever automated program Morganelli's deploying appears to simply sweep up URLs and dump them into a form. It doesn't seem to be able to differentiate sidebar or related search links from the actual URLs linking to infringing copies.

Lynda.com, Zuffa and Lionsgate seem perfectly OK with IP Arrow (and Morganelli) sending out DMCA notices claiming ownership of other companies' content. I contacted all three but only heard back from one: Lynda.com.

On the 19th, I spoke briefly with David Glaubke, Director of Corporate Communications for Lynda.com. He asked what I thought was going on and I told him that it looked like IP Arrow was running a rather lousy bot/crawler and not vetting the results before firing off DMCA notices -- notices that are sworn statements that the company named owns the content listed. And, presumably, Lynda.com was paying IP Arrow to issue false statements in its name.

He assured me that his CTO and IT team were looking into the issue and that he would get back to me with any further comments or statements.

This statement, emailed to me a day after our phone conversation, appears to be Lynda.com's final word on the subject.

lynda.com retains the services of IP Arrow as a part of the company's on-going anti-piracy program to mitigate the illegal download of our intellectual property on torrent sites. On our behalf, IP Arrow issues batch DMCA takedown notifications for links to directories containing our content. Those links often contain keywords designed to drive traffic to adult or illegal material in directories that happen to also contain lynda.com videos. Many of the URLs highlighted in this TechDirt story, implied to be targets of erroneous takedowns, at one time contained our files but no longer do.

That may all be true, but plenty of other anti-piracy companies run automated services and yet, their takedown notices aren't primarily composed of links to content that isn't theirs to take down. Not only that, but Morganelli, who apparently runs IP Arrow, seems to have very little trouble compiling vastly more accurate takedowns for LFP Video.

Why would a content owner be satisfied with service like this? Hopefully, Lynda.com and IP Arrow's other clients aren't being charged per URL. The way IP Arrow's service "works" pretty much guarantees the takedown notices will be completely useless by the time they're processed. This hardly seems like an efficient way to fight piracy.

Then there's this to consider, from the same Torrentfreak commenter.

So why did he do this? [split off Lionsgate, Lynda.com and Zuffa to IP Arrow]

Maybe because Hollywood still remembers Joe Morganelli as the guy they sued nearly a decade ago for running one of the internet's biggest warez sites, and are reluctant to give that copyright criminal any more of their money until he pays up on that multi-million dollar judgment he was slapped with but never paid.

Former pirate goes into the piracy-fighting business, all the while owing the MPAA $15 million. His previous Usenet experience explains his expertise in combating piracy there but, once out of his comfort zone, he seems to be flailing. Here's what he had to say about his Usenet work.

“What my team does is monitor usenet 24/7 using a Bayesian Classifier. We also verify everything 100% to ensure we are making the proper removal requests for the UFC and our other clients,” Joe Morganelli of Morganelli Group LLC told TorrentFreak.

Apparently, this verification process doesn't carry over to his work outside of Usenet. Even if the URLs listed contained links to his clients' content at the time of "discovery," they no longer do at the point the DMCA notice is processed. It's a lazy, stupid way to rack up hundreds of "hits," which IP Arrow can then point to as "evidence" of its thorough work. Let's not forget, one of the takedowns even asked that the search results for the term "rar" be removed.

It's something that's been noted before and seems to still occur with some frequency -- some companies feel piracy is too much of a problem to ignore, but not enough of a problem to put in the hands of someone competent. The only thing this half-assed approach guarantees is that these companies aren't getting what they paid for.

Filed Under: bogus takedowns, copyright, dmca, joe morganelli, takedowns
Companies: ip arrow, lynda.com, mpaa, ufc, zuffa

Latest Domain Seizures May Come Back To Bite One Of The Biggest Supporters Of Domain Seizures

from the oops dept

Well, this is amusing. With last Friday's seizure of top online poker site domain names, some are noticing that this might come back to haunt one of the biggest supporters of these domain seizures. Ultimate Fighting Championship (UFC), which has been an incredibly aggressive player when it comes to copyright issues, was one of the key operations that helped the Feds seize some domain names earlier this year.

Yet, it turns out that one of the biggest sponsors of many of the MMA fighters and of StrikeForce -- which UFC recently bought -- was (you guessed it) one of the sites seized, Full Tilt Poker. Oops.

Filed Under: advertisers, domain seizures
Companies: full tilt poker, ufc

UFC Sues Justin.tv, Claiming It Induced Infringement

from the one-to-watch dept

The company that owns Ultimate Fighting Championship (UFC) has been complaining and threatening about online streaming video services for a while, but it appears that it's finally started suing, and its first target is Justin.tv. This isn't that surprising, given that it's (loudly) complained about Justin.tv for years, and made clear it was gearing up for lawsuits. I haven't seen the full filing yet, but unless there's something egregious in there, I can't see why Justin.tv isn't protected by the DMCA's safe harbors. UFC (well, really its parent company, Zuffa LLC) is trying to claim "inducement" and seems to be suggesting that Justin.tv doesn't respond helpfully enough to takedowns. However, from what I've heard, Justin.tv is pretty vigilant in responding to takedowns and has put in place safeguards to try to block such things. They might not work perfectly, but the company has definitely done plenty to try to block such streams. Again, perhaps there's something more in the filing, but otherwise, it seems likely that Justin.tv is clearly protected by the DMCA's safe harbors.

Filed Under: copyright, inducement, streaming
Companies: justin.tv, ufc, zuffa

UFC Plans To Sue Individuals, Despite The Cost Being More Than Any 'Loss'

from the someone-want-to-give-them-a-recap-how-that-worked-for-the-RIAA dept

There's something that just drives some executives nuts about the idea that someone might access their content "without paying" directly for it. We saw this last year when music industry execs kept saying they had to stop going to war against consumers, but immediately followed that up by saying that none of that mattered if they couldn't stomp out "piracy." It's as if the second any sort of unauthorized use occurs, the entire "cost-benefit" analysis goes out the window. If it's costing you more to try to stop unauthorized access, and it's not working, and there are ways to embrace it that makes you more money, the solution should be simple: you stop worrying and start embracing.

Apparently that message hasn't gotten through to the folks who own Ultimate Fighting Championship (UFC). Perhaps it's not too surprising that such a group's only reaction is to fight, but when they even admit that fighting unauthorized access will cost more than any "losses," you have to wonder how any executive at the company keeps his job. That's a recipe for getting fired: "Hey, I'm going to undertake an action that will cost us more than not taking this action -- oh, and it's likely to piss off a bunch of our biggest fans as well."

This isn't a huge shock. Last month, a UFC exec was at that Judiciary Committee hearing about unauthorized access to live streaming sporting events, and played the role of the RIAA/MPAA lobbyists claiming "them stealers are destroying our business." Given that, it's no surprise that UFC is gearing up to go after both sites like Justin.tv and the individuals themselves. Apparently, UFC's fight-first, think-later execs haven't noticed how badly similar plans have backfired. Most of the streaming websites have pretty strong DMCA safe harbor protections, and suing users hasn't worked out particularly well for the RIAA. Furthermore, pissing off your fans? Yeah, not such a hot move.

Meanwhile, the Torrentfreak article above does a really nice job breaking down just how many people willingly pay huge sums to watch UFC events on Pay-Per-View, and how that number keeps on growing. There was apparently a dip in a recent fight, but TF notes that it probably had more to do with one of the headlining fighters having to back out. What does become clear is that UFC has no problem convincing huge numbers of people to pay up huge amounts to watch its events. Pissing off a lot of fans with ridiculous lawsuits doesn't make anyone more likely to buy.

Hell, even Joe Rogan, the comedian (and notorious hater of "joke stealers") who also acts as commentator for UFC seems to think this is a bad idea, saying: "I think that kind of stifles innovation. It stifles the direction the internet is going. I like things being out there. I think people are always going to buy UFC pay-per-views. You're going to get a much better experience watching it on your television than all stretched out looking fuzzy and pixilated. They're trying to protect their money, but the internet is a strange animal."

Filed Under: copyright, lawsuits, sporting events, strategy, streaming, ufc
Companies: ufc