Court Issues Highly Questionable Restraining Order Over Anyone Even Remotely Related To Streaming Mayweather/Pacquiao Fight

from the that's-not-right... dept

Last week, we wrote about HBO and Showtime teaming up to pre-emptively sue two websites that publicly claimed they were going to live stream video footage of the Floyd Mayweather/Manny Pacquiao boxing match that happened this weekend. As we noted, it seemed odd to sue someone for infringement prior to the copyrighted content even existing, but as some helpfully noted, US copyright law includes a weird provision, 17 USC 411(c), which notes that when you're talking about works where "the first fixation of which is made simultaneously with its transmission," then "the copyright owner may, either before or after such fixation takes place, institute an action for infringement" given a few, pretty basic, conditions. In other words, while rare, the law does allow for just that sort of lawsuit for anticipatory infringement.

Thus, it shouldn't be too surprising that the judge, in fact, granted the request for a temporary restraining order on the two sites in question, boxinghd.net and sportship.org. Frankly, I have no idea if either one of the sites carried through on their promise to stream the fight this weekend, though I imagine it would be fairly dumb of them to have actually done so. From a cursory check, as I type this, it appears both sites are completely offline, so perhaps they both just shut down rather than deal with the threats from HBO and Showtime (or, perhaps, just moved to alternate domains).

However, as EFF points out, the court's temporary restraining order issued in the case goes way, way beyond just restricting those two sites, and raises some really serious concerns. Specifically, the restraining order didn't just restrict those two sites from showing the streams of the boxing match, but basically anyone who is sent the order:

Each and every one of the Defendants and their agents, servants, employees, officers, attorneys, successors, licensees, partners, and assigns and all those acting in active concert or participation with any of them, including any and all service providers who receive notice of this Order, are temporarily restrained and enjoined...

As the EFF points out, this is de facto SOPA -- allowing copyright holders to simply point at a site they don't like, claim they're "bad" and basically order them off of the internet by merely sending a copy of the restraining order:

You may not feel much sympathy for the websites in question. But this kind of site-blocking, without real legal process, is essentially one of the worst parts of the ill-conceived, long-dead Stop Online Piracy Act (SOPA) being brought in through the courtroom back door. HBO got an order to block content against those who act as intermediaries, even though they have nothing to do with the alleged illegality of the sites, are simply providing normal business services, and almost surely had no notice that they were about to be enjoined.

This is not the way our legal system is meant to work, and the good news is that it actually doesn’t. Federal Rules only allow courts to issue injunctions against those who truly are in “active concert or participation” with bad actors. We doubt that those who offer hosting services and video delivery, without more, can properly be considered in “active concert or participation” with the unauthorized streamers.

As the article above points out, it may not seem all that sympathetic considering these kinds of sites, but take it a step further. As we already discussed, whether or not these sites actually streamed any parts of the fight, the fight was widely streamed -- but via Twitter's Periscope service. And, under the terms of this order, if HBO or Showtime had sent this order to Twitter, it could be found to have violated a court order despite not even remotely being a party to the case!

I don't care what you think about those who might have streamed the fight in an unauthorized way, you have to admit that there are clear due process concerns when a court pushes such a broad order, that ties the hands of those who might not even have been aware of the court case at all, let alone that it was legally restricting their ability to operate (in a way that might also be technically impossible). Yes, this may have been convenient for HBO and Showtime, but it's difficult to see how that temporary restraining order is even remotely constitutional (or sensible).

Filed Under: due process, floyd mayweather, free speech, lawsuits, manny pacquaio, restraining order, streaming
Companies: hbo, showtime, twitter

Forget, Mayweather v. Pacquaio: The Big Fight Was Apparently Hollywood v. Periscope Streaming

from the oh-make-it-stop dept

Remember, just last week, when HBO and Showtime were flipping out about a couple of streaming sites promising to broadcast live streams of the big Floyd Mayweather/Manny Pacquiao fight? Apparently, they had the wrong target.

Just a few weeks earlier, we had noted that Hollywood seemed to be losing its mind over the latest round of livestreaming apps. Never mind that livestreaming apps have been around for ages, but because there were two new shiny ones (Periscope, which is owned by Twitter, and Meerkat), suddenly it was a "big deal" again. Especially when it came to sporting events. We'd already discussed the NHL's silly ban on reporters, saying they couldn't use Periscope. All of that came together this weekend in a collective mess.

First, many of the big pay TV providers experienced outages, meaning that people who paid $100 to see just this one fight found themselves completely locked out. Looking for a solution, they turned to Periscope. And they apparently found what they were looking for. And, it probably didn't help that Twitter (again, owner of Periscope) CEO Dick Costolo tweeted the following, claiming "the winner is... Periscope." Of course, as some pointed out, he may have really been talking about the fact that HBO itself used Periscope to show inside Pacquiao's dressing room before the fight -- which seems like a pretty good way to use the technology. However, if this ever leads to a lawsuit, expect that tweet to be an exhibit of an out-of-context claim by HBO/Showtime that Twitter was somehow "inducing" infringement on its platform.

Either way, given how popular the bogus storyline is that there's some sort of existential struggle between Silicon Valley and Hollywood, the resulting news story practically writes itself. Once again, we hear of big bad technology completely tearing down pure hearted big copyright holders, and how "something must be done!"

It will be absurd for Twitter to mount the defense that it complies with any takedown notices filed over copyright-infringing content. Because by the time the compliance occurs the livestream is already over, the company is going to need to figure out a better way to combat piracy on the fly. Periscope may require something like Google’s Content ID system, technology capable of identifying forbidden streams in an instant, and maybe even converting them to transactional opportunities for legal alternatives to the content in question.

Wait, it would be absurd for Twitter to say, "Look, we comply with the law, what else do you want us to do?" Why? Why is it Twitter's responsibility here? Why not the promoters of the show to make sure that their partners supplying the paid streams actually have technology infrastructure in place that works? Or why not Showtime and HBO for creating additional reasons for people to sign up for its service, rather than signing on to one of the Periscope streams?

Why, again, does Hollywood always seem to (1) blame the tech industry for its own failures and (2) then demand that the tech industry magically stop what is unstoppable? Why not, instead, recognize that the technology is really useful, that people like it, and look for ways to take advantage of that? Why not offer an official Periscope stream or partner with others who are Periscoping on their own to offer different/better commentary? There are many things that they could do to embrace things rather than complain about it (or threaten to sue).

Technology keeps advancing. Pretending that you can stop that technology is not a productive path towards the future. Hollywood keeps having to relearn this lesson with every new major technological advancement. It tried to stop the radio, the television, cable TV, the photocopier, the VCR, the MP3 player, the DVR, YouTube and more. One day, you'd think they'd learn that this is a bad strategy.

Filed Under: copyright, dick costolo, floyd mayweather, livestreaming, manny pacquaio, streaming, takedowns
Companies: hbo, periscope, showtime, twitter

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...

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