The Internet legal landscape has often been compared to the Wild West, but most recently the high seas may be the more apt comparison. Less than a week before the NFL Super Bowl, the biggest sports television event of the year, the federal Immigration and Customs Enforcement agency (“ICE”) struck a blow against the unauthorized display of live sports broadcasts on the Internet, condemning a group of alleged pirate websites to the technological equivalent of the gallows.
Armed with a seizure warrant issued in the Southern District of New York on January 31, 2011, ICE seized the domain names of ten of the most popular websites involved in the unauthorized streaming of live sports and pay-per-view broadcasts. A notice informing visitors of the seizure appeared on each accused website, including Atdhe.net, ChannelSurfing.net, HQ-Streams.com, HQ-Streams.net, FirstRow.net, Ilemi.com, IIlemi.com, IIlemii.com, Rojadirecta.com and Rojadirecta.org.
The affidavit supporting the seizure warrant alleged that each accused website was subject to forfeiture pursuant to 18 U.S.C. § 2323 as “property used or intended to be used to commit or facilitate the commission of criminal infringement of copyrights in violation of 18 U.S.C. § 2319.” Section 2319 incorporates violations of 17 U.S.C. §506(a)(1)(C), which provides for the punishment of any person willfully infringing a copyright, if the infringement involved “the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.”
Each of the accused websites is described as a “linking” site, meaning that the sites collect and catalog links to files on independent third-party websites that contain illegal copies of copyrighted sports broadcasts. Each accused site thus serves as a virtual treasure map for pirated content, organizing the links, usually by sport, event and/or starting time and allowing users to browse content to quickly find broadcasts that would otherwise be difficult to locate through a standard internet search. With one click, a user is able to immediately access the broadcast through an embedded video running live on a stream from the third-party site. During the streaming event, advertisements are displayed adjacent to the video and in many cases a user is required to view a short advertisement prior to accessing the selected video.
The affidavit asserts that in the period from December 11, 2010 to January 29, 2011, ICE agents were able to access copyrighted broadcasts of the NFL, NBA, NHL, Ultimate Fighting Championship and World Wrestling Entertainment, in addition to numerous other sporting events, including soccer, tennis, golf, rugby and darts. Additionally ICE agents found links to live programming on networks such as ESPN, MSNBC, CNBC and Fox News. At no time did any of the accused sites receive authorization to display any such copyrighted broadcasts over the Internet, the affidavit states.
Contrary to the assertions in the seizure warrant, the accused websites claim, by various means, that they are not in violation of copyright law because they do not actually host any videos and all videos accessed through their links can be found by users directly at the third-party host sites. For example, Atdhe.net’s terms of service state that (i) its website is “not affiliated nor claim[s] to be affiliated with any of the owners of videos/streams played on our site” and (ii) “[a]ll content is copyright of their respective owners;” and urges all interested parties to “direct all copyright infringement issues to the companies that host these files.”
The accused sites’ argument is not without precedent, at least internationally. In July of 2009, the accused site Rojadirecta defeated a copyright infringement claim brought against it in Madrid, Spain on this basis. The Madrid District court dismissed the complaint on the grounds that Rojadirecta simply provided links to enable users to watch events, and that the actual infringement occurred in the decoding of encrypted broadcast signals, which Rojadirecta did not do. Further, the court noted that although the site included advertising, no profits were made directly from any infringement.
Despite the domain names seizures, the folks behind the accused websites, who are located outside of the U.S., appear to have simply changed their domain names and continued business as usual. Not long after the seizure, Atdhe.net became Atdhe.me, Rojadirecta moved to Rojadirecta.me, ChannelSurfing.net changed to ChannelSurf.eu and the Ilemi sites became Ilemi.tv. The end result is an ongoing game of “whack-a-site” for sports leagues and U.S. law enforcement, and ICE’s seizure, unfortunately, may end up being no more than a harmless shot across the accused pirates’ bows.
Editor’s Note: Unauthorized streaming of sports events is far from harmless. The cost of sports broadcasting licenses is considerable: In 2010, the NFL received over $3 billion in broadcast rights fees from ESPN, Fox, CBS and NBC, with the NBA taking in over $900 million from ESPN/ABC and TNT for its 2010-11 season. With so much booty at stake, the piracy of live sports broadcasts is a serious issue that threatens the value of these broadcast rights. It remains to be seen whether the pirates will be able to stay one step ahead of the law, pillaging and plundering content at will, but sports fans will be watching – but hopefully not from an unauthorized feed.