Online Piracy, SOPA and PIPA – Implications for Global Sports Rights Owners
By Nanda Chalam
A range of internet security experts, technology companies, advocacy organisations and academics are in agreement with the contention that SOPA and PIPA have been drafted without sufficient technical appreciation for the way the internet operates. Most argue that the cure is worse than the disease, citing censorship, the stifling of innovation, threats to free speech and the creation of an unsustainable burden on service providers as reasons for the bills to be voted down. On 13 January, SOPA sponsor Lamar Smith confirmed that DNS blocking and rerouting provisions will be removed from the bill. A month earlier, a group of 83 internet engineers had written an open letter to Congress warning of the dangers to the operability of the internet if these clauses remained. And while opposition to the methods described in SOPA and PIPA from technology giants like Google, Facebook, Yahoo!, Twitter, Mozilla and AOL has been heavily publicised, so too has their acknowledgment of the need to combat foreign websites dedicated to copyright infringement. These companies have expressed their collective support for the stated goals of SOPA and PIPA, even if they disagree with the proposed methods – the first combined statement of its kind from the Silicon Valley corner. A NetCoalition letter to the House and Senate dated 15 November, 2011, concluded with a commitment to work with the Congress to develop targeted solutions to address the problem of foreign “rogue” websites.
Apart from the widely debated side-effects of the SOPA/PIPA proposition, the more crucial question for sports rights holders is that of the proposed legislation’s capacity to adequately address the problem of live broadcast piracy. The chart below outlines the sequence of events that can be expected to follow the application of the SOPA, in its current form, to an instance of copyright infringement.
An important area of concern here is that rogue websites specialising in the piracy of live sport content rarely operate from a single URL or domain. Research carried out by Copyright Integrity International suggests that a single primary infringer may change the internet location of streaming content as many as 100 times in the course of a 5 day sports series. This is done by frequently updating a complex web of linking directories, pages with embedded feeds, and source feeds – all hosted across multiple providers and jurisdictions. Under Section 102(c)(2)(A)(i) of SOPA, U.S. hosting and network service providers are given 5 days to restrict U.S. user access to the infringing website (or portion thereof) that is the subject of the copyright holder’s claim. This is likely to cause a similar setback to the one currently faced by live event rights holders in their application of the Digital Millennium Copyright Act “DMCA” to combat infringement. By the time an order is sought for a particular URL or domain, the pirate could well have moved the location of the content a number of times without materially disrupting the pirate viewer’s experience. This problem is further exacerbated by the fact that most sport broadcasts are complete in a matter of hours.
An offence under copyright law typically begins with the unauthorised reproduction of a protected work. The remedies set forth in SOPA and PIPA with respect to foreign websites do not directly address the act of unlicensed copying if it takes place overseas. Instead, they focus on curtailing U.S. user access and economic support to unauthorised content. The source file, if located on offshore servers, is likely to remain unaffected by the exercise of such legislation. With the growth of reliable offshore advertising networks, the intelligent pirate will find a way to make these pirated feeds accessible, and the intelligent pirate viewer will probably find a way to access them. The anti- circumvention provision included in Section 102(c)(4)(A)(ii) of SOPA will be onerous to enforce and has already been criticised for being an unconstitutional prior restraint against protected speech.
As sports organisations and broadcasters increasingly embrace the potential of the internet through the provision of official, monetised feeds, rights holders in the U.S. and around the world will keenly observe the outcome of the ongoing anti-piracy legislation debate. Acknowledging that major intellectual property issues remain unresolved in a post-DMCA era is itself a significant step for internet technology companies. The current dialogue should therefore continue and drive U.S. lawmakers towards finding a more balanced and technically effective solution. More importantly, the development of new policies for international cooperation amongst service providers is the crucial next step towards safeguarding digital assets and investments in sport content.