Tuesday, September 21, 2010

Update: "My Analysis Re Liability for Viewing an Illegally Streamed Event" In Light of New Senate Online Piracy Bill

In an earlier post, My Analysis Re Liability for Viewing an Illegally Streamed Event, I posted about the potential ramifications of viewing an illegally uploaded stream.  As you may recall, my analysis focused only on liability for viewing an illegal stream, i.e. it did not focus on the easier question of liability for uploading the stream and/or providing a website or forum where viewers can obtain the illegal stream.  This post will address whether the bill titled the Combating Online Infringement and Counterfeits Act introduced by the Senate yesterday (if it becomes law) changes that analysis.

I again repeat my statement from the last post:
At the outset, first please see my disclaimer and note that the information on this site is my opinion, it is not intended to be (and is not) legal advice or an advertisement for legal services. Second, at 10,000 feet, everyone should know that people get sued all the time and a lawsuit, whether meritorious or not, will cause pain, i.e. expending legal fees, wasting time, and added stress. Thus, even if after reading this post you conclude that there is very little probability of success for a claim based on viewing an illegal upload, there is nothing preventing Zuffa, or any other entity broadcasting events, from filing a lawsuit (they could face sanctions if the claim was totally frivolous, but that is not the case here in my opinion). Further, as with the music industry, there is nothing preventing Zuffa or another ppv producer from making an example of a select few -- and you don't want to be one of the few facing legal fees and exposure etc.
As you may be aware, on September 20, 2010 the Senate introduced a bill, The Combating Online Infringement and Counterfeits Act, which would give federal law enforcement "authorities more tools to crack down on websites engaged in piracy of movies, television shows and music." The text of the CCICA is available here.

I did a quick read of the Senate bill and it does not appear to change my analysis from my earlier post because it focuses only on Internet sites, i.e. it has nothing to do with individuals accessing those sites.

Specifically, the bill creates Section 2324 to Title 18 Chapter 113 of the United States Code and provides in relevant part as follows:
‘‘§ 2324. Internet sites dedicated to infringing activities
‘‘(a) DEFINITION.—For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site—
‘‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323;
‘‘(2) is—
‘‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer—
‘‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or
‘‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and ‘‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name. 
Even though I do not think the bill changes the analysis with respect to those viewing an illegal stream, if it becomes law, it would be a significant victory for those businesses affected by piracy, including Zuffa.

As set forth in the Yahoo! article from above, according to Senator Patrick Leahy's office:
The bill will give the Justice Department the 'tools to track and shut down websites devoted to providing access to unauthorized downloads, streaming or sale of copyrighted content and counterfeit goods,' Leahy's office said.
In an article, Bill Would Give Justice Department Power to Shutter Piracy Sites Worldwide, Wired has more information on the bill and describes the enforcement provisions of the Act, i.e. the Justice Department's ability to seek an injunction forcing the domain registrar or registry to stop resolving the allegedly infringing site's domain:
The bipartisan legislation, dubbed the Combating Online Infringement and Counterfeits Act, (.pdf) amounts to the Holy Grail of intellectual-property enforcement. The recording industry and movie studios have been clamoring for such a capability since the George W. Bush administration. If passed, the Justice Department could ask a federal court for an injunction that would order a U.S. domain registrar or registry to stop resolving an infringing site’s domain name, so that visitors to PirateBay.org, for example, would an error.
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