Combating Online Piracy of Live Sports Broadcasts
By Nanda Chalam
Regulating the dissemination and consumption of proprietary content on the internet has been an extraordinary challenge for rights holders and law enforcement agencies in recent years. In its short history of a few decades, the internet has grown exponentially into a borderless, virtual world of nearly 2 billion users, making it the single largest marketplace, playground and medium for information and content exchange on earth. While many collectives such as the Internet Engineering Task Force (IETF) have been set up to address broader issues such as the overall efficiency of the internet’s architecture, no single global body can take responsibility for the legitimacy of content being made available to users owing to the territorial nature of intellectual property rights. For this reason, enforcement of protected rights, if it is to be effective, must be supplemented by litigation in the jurisdiction where the rights enjoy protection under statutory and/or common law.
U.S. and EU Legislation
The United States’ Digital Millennium Copyright Act (codified into 17 U.S.C. §§ 512, 1201–1205) provides a mechanism for affected rights holders to put infringers and providers of online services on notice for copyright infringement (17 U.S.C. §512of the(3)(A)). The recipient is obliged to respond expeditiously by disabling access to the copyright infringing material referred to in the DMCA-compliant notice. The DMCA was passed by the U.S. Senate in 1998 as a means to increase penalties for online copyright infringement while limiting the liability of online service providers who qualify under the safe harbour exemption. U.S. law also provides for rights owners to send third parties Advance Notices of Potential Infringement pursuant to 17 U.S.C. §411(b) in advance of an event, which initiates an action for copyright infringement before the fixation of the work. In addition to recourse under copyright law, 47 U.S.C. §553 provides for civil law remedies against those who intercept, receive, or assist in the interception or reception of cable service without authorisation.
In 2001, the European Union enacted the Copyright Directive, which dealt with a range of issues relating to copyright’s reach on the internet, similar to the DMCA. These provisions, while helpful, are limited in their capacity to extinguish piracy of live event broadcasts in an increasingly complex and geographically distributed online landscape – one where an infringer may be physically located in one country, host a website from another and generate website revenue from a third. In such cases, the prevailing laws of each jurisdiction must be considered.
Dismantling Pirate Infrastructure
A multipronged approach is therefore required to tackle the problem. This involves disabling the cable account being used to pirate the authorised television signal (or equivalent source of audiovisual content), disabling the infrastructure of the pirate website by suspension of its web hosting account, notifying the streaming service provider and the content delivery network (CDN), stemming the flow of revenue to the pirate by termination of the website’s advertising and payment accounts, identification of the IP address and ISP in use by the pirate and consolidation of data towards profiling the infringer for litigation in appropriate jurisdictions. Through engagement with service providers, infringers are forced to move their piracy operations frequently from provider to provider and eventually to more permissive jurisdictions (such as Sweden and the Netherlands). Many web hosts specialise in high-risk co-location hosting services where content is deliberately stored on offshore servers (where removal is difficult under local laws), a service for which the pirate pays a premium.
Recent Trends in Enforcement
Rapid changes in technology and advanced streaming methodologies have made it possible to set up a pirated stream quickly, inexpensively and, at first glance, anonymously, depending on the service used. The increased ease in uploading and viewing flash-based feeds without locally installed clients and browser plug-ins has contributed to the recent decline in the popularity of P2P live streams in this space. Infringers capitalise on the web’s perceived shield of anonymity to turn a quick profit by retransmitting illegal, monetised live streams of sports content to viewers around the world whose appetite for content most often exceeds their inclination to question the legitimacy of the feed or their role in consuming the content. However, the role played by ISPs, domain registries, web hosts and revenue-generation service providers in facilitating piracy is being further scrutinised by internet regulators and stakeholders. A recent sting by Homeland Security Investigations (HIS), part of the Immigration and Customs Enforcement (ICE) wing of the US Department of Homeland Security, saw the execution of seizure warrants against 10 websites involved in rampant illegal distribution of copyrighted sports content (notably American football, basketball, wrestling and baseball). The seizure encompassed some of the most popular pirate portals for sports content online including ATDHE.NET, CHANNELSURFING.NET and HQ-STREAMS.COM just days before the Super Bowl XLV in February of this year.
Interestingly, these warrants for seizure and civil forfeiture under 18 U.S.C. § 2323(a) and 18 U.S.C. § 981 were issued ex-parte and succeeded in immediately halting access to the infringing websites (irrespective of where they were hosted or the physical location of the primary infringer) by demanding that the associated registries redirect name-server requests to an ICE website displaying information about the forfeiture. This was made possible because the internet’s .com and .net operator, VeriSign, is a US-based company upon whom the warrants (pursuant to a federal court order in the Southern District of New York) were binding.
While impactful legislation to address these threats is likely to evolve sporadically across jurisdictions and as technology continues to outpace the law, stakeholders, governments and policy makers in countries that have an established respect for intellectual property are increasingly sensitised to the unique threats posed by such professionally managed pirate operations to live event broadcasting. This awareness has resulted in a number of self-regulatory mechanisms including automated take-down tools being made available to Verified Rights Owners (VeRO) and cooperation amongst service providers. Despite the prevalence of single-point solutions that make piracy seem simple, a wide range of third parties (such as CDNs, ISPs and domain registries) are involved behind the scenes at each stage of the process, many of them based in countries with more progressive intellectual property laws. Greater attention is being focused on these players within existing legal frameworks to obtain immediate relief from piracy where global copyright legislation is simply unable to deliver in the current stage of its evolution.