A new letter sent by attorneys for UFC, NBA and NFL to the U.S. Patent and Trademark Office says it’s time for a refresh of the Digital Millennium Copyright Act—the 1998 law governing the rights of content creators to combat online pirates, enacted in an era when people accessed the internet via dial-up modems and “Live Stream” was not yet a term of art.
On Aug. 23, Riché T. McKnight (UFC), Ayala Deutsch (NBA Properties) and Dolores F. DiBella (NFL Properties) submitted a letter via the federal e-rulemaking portal in response to the USPTO’s request for public comment regarding its May 23 notice titled “Future Strategies in Anticounterfeiting and Antipiracy.”
The letter contends that unauthorized and illegal livestreams of live events deprive these leagues—and, by extension, their athletes—of billions of dollars in revenue. They cite a study finding that piracy deprives the global sports industry of as much as $28 billion in annual revenue.
The letter also details how piracy occurs. There is a crude method known as “screen-capturing” where a person points their iPhone or android camera at a TV or computer screen to stream an event. But pirates have become more sophisticated in recent years, including through “mirroring,” where the illegal stream is often “indistinguishable from the legitimate feed.”
UFC has long been a leader in pushing for legal reforms to combat piracy.
In 2021, Sportico interviewed UFC chief operating officer Lawrence Epstein, who explained how the DMCA is ill-suited for UFC and other leagues that rely on pay-per-view to distribute live content.
DMCA utilizes a notice and takedown approach, where a content creator notifies an OSP, or “online service provider” (such as Facebook, YouTube or X, formerly known as Twitter), to take down an illegal stream. The problem is lack of speed. Sometimes hours or even days can pass—long after a fight or game ends—before the stream is taken down.
The letter stresses that speed can be everything with live sports, particularly in contrast to movies, TV shows and other less time-sensitive content.
“The value of live content,” the letter warns, “often significantly diminished after it first airs.” This problem will become more costly for leagues as more live sports content is delivered through streaming apps and fewer people subscribe to cable or satellite TV.
The sports leagues urge lawmakers and regulators to pursue two reforms.
The first would clarify that where the DMCA requires an OSP to “expeditiously” remove infringing content and when the takedown request concerns live content, “expeditiously” ought to be defined as “instantaneously or near-instantaneously.” The second would place a duty on OSPs to adopt more verification measures of users before they can livestream.
Expect OSPs to submit their own letter(s) and contend that while these leagues describe proposed changes as “modest” and “practical,” those changes would increase OSP’s legal responsibilities and raise their business costs that might be passed onto consumers.
