Justin.tv used to be one of the go-to channel-streaming sites for UFC fans who wanted to watch pay-per-view fights without shelling out the cash — until the UFC filed a lawsuit against them in January 2011. As UFC lawyer Donald J. Campbell said at the time:
“Zuffa has attempted to work on numerous occasions with Justin.tv over nearly a two-year period to encourage it to prevent or limit its infringing activities. Regrettably, Justin.tv has not only turned a blind eye to the massive online piracy occurring on its website, we believe it has actually induced its users to commit copyright infringement thus leaving Zuffa no alternative but to take this fight to the courts.”
The suit came six months after the UFC served a subpoena on Justin.tv to get the names of users who provided streams of UFC broadcasts. But in a blow to the UFC’s ongoing battle against Internet piracy, the charges against Justin.tv were mostly tossed out earlier this month. And now, some analysis from people who understand this stuff a lot better than I do…
Basically, Zuffa focused on two areas not covered (or not clearly covered) by safe harbors. The first is trademark, which is neither covered by the DMCA’s safe harbors nor Section 230′s safe harbors — though, many courts have accepted similar rules that limit liability to third party service providers anyway. In this case, the court is extremely skeptical of the trademark claims, in part because it seemed clear that Zuffa was merely trying to use trademark law as if it were a “mutant copyright law,” which courts have rejected in the past.
The other attempt to get around safe harbors was to use the Communications Act, which has rules against “intercepting cable.” Justin.tv actually suggested that Section 230′s safe harbors should protect it from that claim — which makes sense — but the court doesn’t want to touch that argument. Instead, it just says that the basic idea that Justin.tv is illegally intercepting cable doesn’t make any sense — and notes, again, that it appears to be Zuffa seeking to do an end-run around copyright law…
Trademark. Justin.tv argued that Zuffa’s trademark claims were Dastar-ed. The court partially disagrees because Zuffa wasn’t claiming reverse passing off. Nevertheless, Dastar wipes out Zuffa’s claims about any trademarks actually embedded in the video stream, such as Zuffa’s trademarked Octagon fighting ring, because trademarks would allow Zuffa to control the copyrighted material even after the copyright term expired. Instead, “the Court limits Zuffa’s trademark claims only to the display of Zuffa’s trademarkswhich are not an inherent part of the video broadcast.” Whatever that means…! In a footnote, the court also “expresses extreme doubt” about Zuffa’s trademark inducement claim.
Communications Act. Zuffa’s claims relate to the “stealing cable” provisions. Justin.tv claimed that 47 USC 230 applies, a pretty logical argument given that Zuffa is bringing a non-IP claim against Justin.tv for third party content. However, the court sidesteps the Section 230 issue, saying it’s never been applied to the Communications Act (true) and that the court couldn’t find any analogous “stealing cable” claim against websites, and it didn’t want to touch this “novel” issue.
Instead, the court dismisses the “stealing cable” claim on its elements. The court says:
In essence, Zuffa alleges that Justin.tv’s users copied Zuffa’s UFC event and then rebroadcast the UFC event over the internet. This is not the type of conduct properly addressed by the Communications Act, but by copyright law (and, potentially, trademark law) because Justin.tv had no relationship with the original cable or satellite signal: by the allegations, Justin.tv did not receive or intercept any actual cable or satellite signal or broadcast. The Court finds no evidence in the statutory language, other cases, or legislative history that the Communications Act addresses this type of conduct or was meant to bolster or act as a separate type of copyright claim.
In a footnote, the court notes the troubling implications of Zuffa’s argument:
if the Court were to allow claims such as these, it would have to allow similar Communications Act claims against scores of “cloud computing” service providers such as Microsoft, Apple, Google, Amazon.com, Dropbox, Box.net, and others because Jusint.tv’s [sic] particular streaming service would be irrelevant. As an example, say a person took a snippet (or longer) of video of a UFC match being broadcast on their television with their iPhone, Windows Phone, etc. The iPhone then automatically uploads that video to one of dozens of cloud storage systems such as Apple’s iCloud. The Court refuses to find that Apple (or Microsoft, etc.) would be liable under the Communications Act for merely receiving and storing this data under the Communications Act. Yet, Zuffa arguesfor exactly this result when it argues that Justin.tv’s mere receipt of this video stream makes Justin.tv liable. In passing the Communications Act, Congress did not intend such a result, and this Court will not broaden the effect of the statute in this manner.
At its core, the lawsuit is about copyright infringement, and Justin.tv didn’t attempt to dismiss that claim. So the case hasn’t gotten to the real meaty claim yet. It’s my (presumably biased) position that Justin.tv should clearly qualify for the 512(c) safe harbor.
To my layman’s ears, it sounds like the lawsuit was dismissed for the same reason that SOPA didn’t pass — it would have set hefty precedents that threatened all kinds of free speech and communication on the Internet. And so, the UFC will have to find another way to combat piracy, like suing their own fans. Hey, it worked for the music industry, right?