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Before the

COPYRIGHT OFFICE
LIBRARY OF CONGRESS
Washington, D.C.

In the Matter of
Section 512 Study

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Docket No. 2015-7

COMMENTS OF
THE PROFESSIONAL SPORTS ORGANIZATIONS
The National Basketball Association, National Football League, National Hockey League and
Ultimate Fighting Championship (collectively, the “Professional Sports Organizations” or “PSOs”)
submit the following comments in response to the Copyright Office’s (“Office”) Notice of Inquiry
published at 80 Fed. Reg. 81862 (Dec. 31, 2015) (“Notice”).
INTRODUCTION AND SUMMARY
The purpose of this proceeding is to evaluate the “safe harbor” provisions in Section 512 of
the Copyright Act, 17 U.S.C. § 512, which Congress enacted as part of the Digital Millennium
Copyright Act of 1998 (“DMCA”). Notice at 81862. Section 512 establishes, among other things, a
“notice-and-takedown” process that requires Internet Service Providers (“ISPs”) to remove infringing
material from their websites “expeditiously” following proper notification.

See 17 U.S.C. §§

512(c)(1)(C) & (d)(3). The Office has sought comment on several issues, including (i) whether
courts have “properly construed” Section 512; (ii) whether the notice-and-takedown process has been
“effective . . . for addressing online infringement;” and (iii) whether there are “technologies or
processes that would improve the efficiency and/or effectiveness of the notice-and-takedown
process.” See Notice at 81868 (Questions 2, 6 & 11).
To date, only one court has considered whether an ISP complied with Section 512’s
requirement of “expeditious[]” removal in the context of live sports telecasts. See Square Ring, Inc.

v. John DOE-1, 2015 WL 307840 (D. Del. Jan. 23, 2015) (“Square Ring”). After nearly six years of
litigation, the court in Square Ring ruled that it was a triable issue of fact whether an ISP acted
“expeditiously” -- notwithstanding the uncontroverted facts that the ISP failed to remove the
infringing streams until two days after the live telecast ended and after receiving multiple notices both
before and during the telecast. That ruling, if followed by other courts, would undermine the
effectiveness of the DMCA’s notice-and-takedown process. A copyright owner of a live sports
telecast should not be required to go through a jury trial to demonstrate that an after-the-fact
takedown is not an “expeditious” takedown.
Given the unique and perishable nature of live sports telecasts, the appropriate takedown time
for those telecasts is not the same as it may be for other copyrighted works. An ISP does not act
“expeditiously,” for purposes of Section 512, unless it either removes infringing streams of a live
sports telecast at the same time it receives a DMCA-compliant notice (i.e., immediately) or provides
the copyright owners of those telecasts with the means to remove the infringing streams when they
afford such notice. ISP’s are fully capable of affording that protection against online infringement
and, indeed, have routinely done so, at least prior to Square Ring. While the PSOs take no position
on the meaning of “expeditiously” in other contexts, in the context of live sports telecasts
“expeditiously” must mean “immediately” if there is to be an effective remedy for addressing live
streams. Any other interpretation would be as meaningless as ordering the stable doors closed after
the horses have bolted.
DISCUSSION
A.

Piracy of Live Sports Telecasts

The PSOs and their affiliates have developed very successful, diverse and innovative sports
media businesses. They provide thousands of live telecasts of their games or events each year over a
variety of media, including broadcast television stations and networks, cable systems, cable networks,
regional sports networks and satellite. They also distribute those telecasts to a global audience on
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personal computers, tablets, smart phones and other Internet-connected devices. Each telecast is a
copyrighted work in which a PSO, or its affiliate, owns the worldwide copyright. The significant
revenue that the PSOs derive from licensing the distribution of their game and event telecasts is
critically important to the continued creation of such highly-valued and popular copyrighted content.
It is uncontroverted that the unauthorized retransmission of live sports telecasts over the
Internet constitutes copyright infringement. Nevertheless, individuals and commercial enterprises
throughout the world routinely engage in such infringement. Using readily-available and continuallyimproving technology, they make live sports telecasts available online to countless others without
obtaining the consent of, or compensating, the affected copyright owners. Several for-profit websites
have emerged to facilitate access to the unauthorized streams of live sports telecasts by conveniently
indexing and linking to them. These websites are located not only in the United States but worldwide
-- often in countries with inadequate copyright protection or enforcement. See United States Trade
Representative,

2015

Special

301

Report

at

17-18

(April

https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf.

2015),

available

at

Consumers can easily

purchase “black boxes” pre-equipped with apps permitting easy access to websites that focus on the
piracy of sports programming.
B.

The DMCA Notice-and-Takedown Process

Congress enacted the DMCA in 1998, years before online piracy of live sports became a
problem; the focus of legislative concern at that time was on website hosting of content, not
unauthorized streaming of telecasts in real-time. There is no mention of live sports piracy anywhere
in the extensive legislative history of the DMCA, and the sports industry was never part of the
DMCA debates. See S. Rep. No. 105-190, at 9 (1998) (“[T]he DMCA enjoys widespread support
from the motion picture, recording, software, and publishing industries, as well as the telephone
companies, long distance carriers, and other OSPs and ISPs”). Congress did not hold hearings
concerning online sports piracy until 2009, nearly a decade after passage of the DMCA, referring to it
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as a then-“emerging” problem. Hearings Before the House Comm. On the Judiciary: Piracy of Live
Sports Broadcasting Over the Internet, 111th Cong., 1st Sess. 1 (2009) (“2009 Sports Piracy
Hearings”) (statement of Rep. Jon Conyers, then-Chairman of the House Judiciary Committee); see
Mellis, Internet Piracy of Live Sports Telecasts, 18 Marq. Sports L. Rev. 259 (2008).
Congress thus crafted the DMCA notice-and-takedown provisions without having piracy of
live sports programming in mind. See, e.g., 17 U.S.C. § 512(g)(2) (providing for a more than twoweek process of counter-notification and replacement of removed material). Nevertheless, the PSOs
have accepted the paradigm of “cooperat[ion]” that Congress sought to foster in the DMCA (see H.R.
Rep. 105-551(II) at *49-50 (July 22, 1998)) by working within the framework of the DMCA’s noticeand-takedown process to combat online infringement.

The PSOs have devoted considerable

resources to identifying infringing streams of their telecasts, and they have regularly collaborated
with ISPs to secure the immediate removal of those streams. The PSOs have followed the DMCA
protocols in dealing with ISPs located both within and outside the United States. The PSOs’ noticeand-takedown efforts have met with some success in dealing with online piracy of live sports
telecasts, albeit at significant cost to the PSOs.
Central to that success, however, is a common understanding that ISPs must act immediately
to remove infringing streams of live sports telecasts. Congressman Goodlatte, the current Chairman
of the House Judiciary Committee, underscored that point during the 2009 Sports Piracy Hearings.
He noted that sports interests necessarily want ISPs to “respond nearly immediately” to takedown
notices. 2009 Sports Piracy Hearings at 55. He then asked the ISP witness whether it was “feasible”
to remove infringing material that “quickly.” Id. at 56. The ISP responded affirmatively, explaining
that it made use of a “copyright protection system” that allows copyright owners to “look at the site,
identify their content, and have it removed immediately.” Id. (testimony of Michael Seibel, CEO,
Justin.tv Inc.) (emphasis added). As this testimony and the PSOs’ experience confirm, for many

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years ISPs have had the ability to remove infringing streams of live sports telecasts immediately upon
notification, either by doing so themselves or by providing PSOs with automated takedown tools.
C.

“Expeditious” Removal of Live Sports Telecasts

The Square Ring court concluded that Congress in 1998 intended to extend the DMCA safe
harbors to ISPs that stream live sports telecasts because there are “a number of examples of live
internet broadcasts occurring in the years prior to 1998.” Square Ring v. Doe-1, 2015 WL 307840, at
*4. Even if that conclusion is correct, Section 512 does not mandate that the takedown period for live
sports telecasts is the same as for all other copyrighted works.

There is no definition of

“expeditiously” in Section 512 itself; and the only legislative history concerning the meaning of that
term suggests that it is important to account for the differences between live sports telecasts and other
types of works: “Because the factual circumstances and technical parameters may vary from case to
case, it is not possible to identify a uniform time limit for expedition.” H.R. Rep. 105-551(II) at *5354 (July 22, 1998); S. Rep. 105-190 at 44 (May 11, 1998).
There are compelling reasons for distinguishing between live sports telecasts and other
copyrighted works for purposes of determining what constitutes an “expeditious[]” takedown time.
Unlike most other copyrighted works, a live sports telecast often holds its most significant value
while the event is occurring and the score, result, or key play is unknown. For a professional
football, basketball or hockey game, the prime period for maximizing that value may be a few hours;
for boxing or mixed martial arts, that period may last for only a few minutes or less. The damage
caused by allowing potentially millions of viewers unauthorized online access to infringing streams
of live sports telecasts cannot be undone by after-the fact removal of links that no longer transmit
those telecasts.
As one witness explained during the 2009 Sports Piracy Hearings:
We do our best at considerable expense to have our copyrighted content
removed from these web sites. We have a team of in-house technicians
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scanning the web sites and chatrooms to find our pirated content. We also have
hired several private vendors to assist us in this effort.
However, even if . . . after our request the streaming web site takes
down our pirated content, it is often too late because the value of our content is
extremely perishable. A match can be over in seconds. So even if the web site
takes the infringed content down within 15 minutes, the damage is done.
...
I know that the DMCA was put in place, but I am not sure that that
contemplated live streaming events. Certainly [when] somebody puts up a song
. . . there is this issue of notice and take down and what is the amount of time
that it should take to take that down, the amount of damage if it is within 24 or
48 hours is significantly different than it is to one of our events which is a live
Pay Per View, and the value of our product goes down significantly. It is very
perishable every minute that goes by.
2009 Sports Piracy Hearings at 12, 52 (testimony of Lorenzo J. Fertitta, CEO, Ultimate Fighting
Championship (“UFC”)). While telecasts of other sports events may typically last longer than a payper-view UFC event, their window for a meaningful takedown also is quite limited.
In enacting the DMCA, Congress sought to “balance” the rights of copyright owners and ISPs
and to encourage a “cooperative” process that would deal “efficiently” with online infringement. S.
Rep. 105-190 at 21, 45. But none of those legislative objectives is achieved if an ISP may unlawfully
expropriate the core value of a live sports telecast before takedown. The very policies underlying the
DMCA support the conclusion that, in order to enjoy the benefits of the DMCA’s safe harbors, ISPs
must remove infringing streams of a live sports telecast immediately following proper notification
while the telecast garners its maximum value.
Moreover, construing the DMCA to immunize an ISP’s retransmission of all or most of a live
sports telecast before “takedown” would be inconsistent with the Congressional policies underlying
Section 411(c) of the Copyright Act, 17 U.S.C. § 411(c). Section 411(c) in effect permits copyright
owners of such telecasts to obtain injunctive relief against infringement even before those

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infringements occur1 -- provided the owners comply with Copyright Office advance notification rules
(37 C.F.R. § 201.22), which are different from the DMCA notification rules and do not require
identification of specific infringing streams. Section 411(c) reflects Congress’s intent that copyright
owners of live programming, including live sports telecasts, should be able to protect the economic
value of their copyrighted content by preventing a defendant from unlawfully retransmitting any
portion whatsoever of that programming.

Because Congress in the DMCA never considered

streaming of live telecasts, there is nothing in the language or legislative history of the DMCA
suggesting that Congress intended to abrogate Section 411(c) -- or undermine its underlying purpose
of providing copyright owners with effective remedies against the unauthorized use of their content.
D.

The Square Ring Decision

There are relatively few reported decisions in which courts considered whether an ISP acted
“expeditiously,” for purposes of Section 512, in removing infringing material. With the exception of
Square Ring, none involved live sports telecasts. See Capitol Records, LLC v. Vimeo, LLC, 972 F.
Supp. 2d 500, 535-536 (S.D.N.Y. 2013) (musical works and sound recordings incorporated in home
videos); Perfect 10, Inc. v. Google, Inc., 2010 WL 9479059, at *9-10 (C.D. Cal. July 26, 2010) (adult
photographs); Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1149-1150 (N.D. Cal.
2008) (clips of adult films); CoStar Group Inc. v. Loopnet, Inc., 164 F. Supp. 2d 688, 704 (D. Md.
2001) (real estate photographs).
Square Ring concerned a March 21, 2009 telecast of a boxing and mixed martial arts match
that the plaintiff (“SRI”) made available live over various cable, satellite and Internet outlets on a

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See, e.g., Temporary Restraining Order in Showtime Networks Inc. v. John Doe 1 d/b/a
boxinghd.net, Case No. 2:15-CV-03147-GW-MRW (C.D. Cal. April 30, 2015) Dkt. 20 (TRO under
Section 411(c) enjoining a website from streaming the May 2, 2015 Mayweather/Pacquiao fight);
Order Granting Plaintiffs’ Ex Parte Application For Temporary Restraining Order in Showtime
Networks Inc. v. John Doe 1 d/b/a mayweathervsandrebertolivestream.com, Case No. CV 15-7071-R
(C.D. Cal. September 10, 2015) Dkt. 19 (TRO under Section 411(c) enjoining a website from
streaming the September 12, 2015 Mayweather/Berto fight).
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pay-per-view (“PPV”) basis.

(“March 21 Live Telecast”).

Because UStream.TV had offered

infringing streams of SRI’s prior telecasts, SRI sent UStream.TV several Section 411(c) notices
during the period March 17-20, 2009 covering the March 21 Live Telecast. Those notices also
requested UStream.TV to provide SRI with an automated takedown tool and the name of a contact
person. UStream.TV ignored the requests and asked SRI to provide the URLs of the channels
containing the infringing streams that had not yet commenced. Once the March 21 Live Telecast
began airing, SRI sent UStream.TV three DMCA-compliant notices identifying specific URLs. It
was not until two days later, well after conclusion of the March 21 Live Telecast, that UStream.TV
disabled access to the URLs -- which, of course, no longer were transmitting the infringing streams of
that telecast. On July 30, 2009, SRI filed a copyright infringement action against UStream.TV.
In moving for summary judgment on Section 512, UStream.TV argued that its after-the-fact
takedown was “expeditious.” It pointed to decisions where courts ruled that a one- or two-day period
to remove other types of copyrighted works was sufficient, claiming the law does not require ISPs to
remove infringing streams of telecasts “simultaneously” as they occur live. See Defendant’s Opening
Brief in Square Ring, 2013 WL 9817123 at *8 (July 31, 2013); Defendant’s Reply Brief in Square
Ring, 2014 WL 5365818 at *8 (April 25, 2014). The court properly denied UStream.TV’s motion for
summary judgment. But the court did so because it said there were issues of fact concerning, among
other things, whether UStream.TV had acted “expeditiously,” noting:
[There is a] complete lack of legal precedent for this factual situation. The
court is not prepared to make a factual determination as to whether UStream
acted expeditiously as required by the safe harbor provision. A number of
questions of fact exist as to what precisely was done during the time period in
which UStream received the March 17, 2009 notices and the ultimate
takedown on March 23, 2009, a full forty-eight hours after the DMCAcompliant notices were received.
Square Ring, Inc. v. Doe-1, 2015 WL 307840, at *7. Six years after SRI commenced its infringement
action the parties settled without going to trial.

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The material facts in Square Ring were not in dispute: UStream.TV failed to remove
infringing streams of a live sports telecast until two days after the telecast had ended and
notwithstanding that it had been afforded multiple notices before the telecast and DMCA-compliant
notices during the telecast. Under such circumstances, the court should have ruled that UStream.TV
failed to act “expeditiously” and thus did not qualify for the DMCA safe harbors. Nothing in the
language, structure or history of the DMCA precludes a court from ruling as a matter of law whether
an ISP acted “expeditiously” within the meaning of Section 512. Courts have held, as a matter of
law, that ISPs did act “expeditiously.” See Capitol Records, supra, 972 F. Supp. 2d at 536; Io Group,
supra, 586 F. Supp. 2d at 1149-1150. There is no reason courts cannot reach the opposite conclusion.
And the facts of Square Ring -- where the ISP fails to act until after the live telecast ends -- provide a
paradigmatic example of a case where the court should have done so.
One district court read the DMCA legislative history to suggest that “whether a service
provider's removal or disabling of access to infringing material was expeditious ordinarily would be a
factual rather than a legal inquiry . . . .” Perfect 10, supra, 2010 WL 9479059, at *6-7, citing S. Rep.
No. 105–190, at 44 (1998). But the court also indicated that a ruling as a matter of law would be
appropriate where the delay is “unusually lengthy and not justifiable.” Id. Failing to remove
infringing streams of a live sports telecast until after the telecast concludes, by definition, is
“unusually lengthy and not justifiable.” ISPs have the ability to remove those streams immediately
upon proper notification or to allow copyright owners of those telecasts to do so.
Finally, it should be noted that SRI did not seek summary judgment; nor did SRI argue that
UStream.TV failed to act expeditiously as a matter of law. See Plaintiff’s Brief in Opposition in
Square Ring, 2014 WL 5365807 at *9 (April 17, 2014). SRI was apparently content to take the
matter to a jury and thus the court in Square Ring cannot be faulted for not ruling as a matter of law
that UStream.TV failed to act expeditiously. Regardless, the Square Ring ruling underscores the
importance of making clear that the DMCA does not require a copyright owner of a live sports
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telecast to undergo a jury trial where an ISP fails to remove infringing streams of a live sports telecast
until after the telecast concludes.
E.

Copyright Office Guidance

During the 2009 Sports Piracy Hearings, Representative Goodlatte focused upon the
requirement that ISPs act “expeditiously” in the context of removing infringing streams of live sports
telecasts. Recognizing that this was not an issue considered during the DMCA negotiations, he
noted: “I suppose the meaning of the word ‘expeditiously’ has got to change or the DMCA has got to
change.” 2009 Sports Piracy Hearings at 55. The PSOs believe that the current language of the
DMCA and its legislative history support the application of the term “expeditiously” in the manner
set forth above. The history of the DMCA makes clear that there is no one-size-fits-all definition of
“expeditiously” and that the term is flexible enough to account for, among other things, the
differences between telecasts of live sports events and other types of copyrighted works. However,
where copyright owners and ISPs are proceeding under a DMCA framework with respect to live
sports telecasts, they should receive proper guidance as to what constitutes an expeditious takedown.
Congress enacted the DMCA with the objective of providing “certainty” in the area of online
copyright infringement. See S. Rep 105-190 at 2. That “certainty” is lacking when it comes to online
infringement of live sports telecasts.
As the Copyright Office is aware, the Commerce Department has undertaken studies that deal
with the nature and best practices of the DMCA notice-and-takedown process. See Notice at 81865
n.10, citing U.S. Dep’t of Commerce Internet Policy Task Force, Copyright Policy, Creativity, and
Innovation

in

the

Digital

Economy

(Jul.

2013),

available

www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf;

U.S.

at

http://

Dep’t

of

Commerce Internet Policy Task Force, DMCA Multistakeholder Forum, DMCA Notice-andTakedown Processes: List of Good, Bad, and Situational Practices (2015), available at http://
www.uspto.gov/sites/default/files/documents/DMCA_Good_Bad_and_Situational_Practices_Docum
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ent-FINAL.pdf.

However, neither of these studies provides any discussion of the Section 512

requirement that ISPs act “expeditiously,” let alone guidance on the meaning of that requirement in
the context of live sports telecasts. Given the unique and perishable nature of live sports telecasts,
infringing streams of those telecasts must be removed immediately following proper notice, not hours
or days after the telecast ends. The Copyright Office should provide that guidance in its final report
here. In the PSOs’ experience, the views of the Copyright Office, like the views of the courts
themselves, play an influential role in the process by which copyright owners and ISPs -- both in the
United States and in foreign countries -- collaboratively deal with online infringement.
CONCLUSION
For the reasons discussed above, the PSOs ask the Copyright Office to make clear in its final
report that infringing streams of live sports telecasts must be removed immediately upon receipt of a
DMCA-compliant notice.
Respectfully submitted,

/s/ Robert Alan Garrett
Robert Alan Garrett (D.C. Bar No. 239681)
M. Sean Laane (D.C. Bar No. 422267)
Michael Kientzle (D.C. Bar No. 1008361)
ARNOLD & PORTER LLP
601 Massachusetts Avenue, N.W.
Washington, D.C. 20001
202.942.5000 (voice)
202.942.5999 (facsimile)
Robert.Garrett@aporter.com
Sean.Laane@aporter.com
Michael.Kientzle@aporter.com
Attorneys for the National Basketball Association,
National Football League, National Hockey
League and Ultimate Fighting Championship
Dated: April 1, 2016

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