The Snore of the Century: Mayweather-Pacquiao Promoters v. Streaming Services

The promoters of the recent Mayweather-Pacquiao boxing match took one on the chin for raking in big dollars promoting the “Fight of the Century,” which instead was a technically masterful but tedious defensive performance by Mayweather, marred by reports that Pacquiao was fighting with an undisclosed injury. Not content with being knocked on the canvas for the quality of the fight, the promoters are sticking their chins out for another knockdown punch by threatening to sue those who pushed bootlegged streams of the fight, possibly including streaming apps Periscope and Meerkat.

Copyright owners have spent decades and millions of dollars taking technology companies to court over alleged facilitation of infringement through technology, with choppy results. See Content owners scored two early knock outs against Napster and Grokster. Napster was shut down because it primarily provided the site and facilities for users to share bootleg copies of songs and because it maintained a centralized system through which the illegal files were shared and could be located. Grokster avoided these mistakes by providing a peer-to-peer sharing system that Grokster did not index or control, but there was evidence that Grokster induced infringement by promoting membership to ex-Napster users.

Beyond Napster and Grokster, victories by content owners against technology companies relating to infringing content have been more limited. Generally, if an Internet service provider is merely providing a hosting platform through which users can directly upload, stream or share content, where there are significant non-infringing uses of the site, and in the absence of evidence that the host is ignoring “red flags” of infringement, it will not be liable for the infringing activities of users. It thus becomes the responsibility of copyright owners to provide notification of the nature and location of any infringing uses to the service provider.

The Mayweather-Pacquiao promoters are apparently concerned about a proliferation of infringing streams of the pay-per-view fight, created by taping a screen with an authorized display of the fight. The promoters have a perfect right to go after those who made the illegal recording, but finding and obtaining court judgments against such people can be a fruitless game of “whack-a-mole.” Suits against Periscope and Meerkat would have the potential impact of a damage award or possibly an injunction against the platform for infringing streams, but with limited chances for success. Since both Periscope and Meerkat permit users to stream content directly without their intervention or knowledge, and assuming neither were dumb enough to encourage users to stream bootleg copies of the fight, Periscope and Meerkat would enjoy safe harbors against secondary liability under the copyright law.

Relatively affordable content streaming services (e.g. Netflix) are the hottest trend in content distribution. While litigation against the likes of Periscope and Meerkat over bootleg streams is likely to have limited success, perhaps they could be “YouTube-ized” into new authorized distribution channels. Lawsuits by content owners against YouTube over infringing uploads had little success in court, but resulted in new business whereby content owners and YouTube cooperated to create authorized distribution channels on YouTube in exchange for voluntary improved efforts to detect and shut down infringing uploads. Perhaps Periscope or Meerkat will emerge as authorized streaming platforms for the next “Fight of the Century.”