In the days leading up to last February’s Super Bowl, United States Immigration and Customs Enforcement quietly seized the domains for a handful of websites that directed visitors to questionably legal live streams of sports games. The seizure, part ten of an ICE program called “Operation In Our Sites” and aimed at taking domains of copyright infringers, was a small blip on the news radar, accompanied by little fanfare from the feds. Many of the outlets reporting on it chose to focus on a recent Tom Brady quotation instead of the complicated legal issue. To be fair, what Brady said was pretty funny. “Last year,” he explained, "I was rehabbing my foot, in Costa Rica, watching the game on an illegal Super Bowl website. And now I’m actually playing in the game."
Though Brady’s visit to the unnamed website reflects the widespread awareness of these sites’ existence, his admission probably did not cause the raid. A similar round of seizures occurred in 2011, also just days before the Super Bowl, this time taking ten domains instead of sixteen. It seems unlikely that either raid accomplished its broader goals: ATDHE.eu (presumably linked to ATDHE.net, a target of the 2011 raid) and thefirstrow.eu (part of First Row Sports, which had domains taken in both years) are still in operation. And Rojadirecta, another 2011 target (and another site that stayed alive at a different domain), has recently seen ICE renege on its seizure after an 18-month legal battle; the .com and .org destinations have already been returned and now redirect to the main site.
Rojadirecta, owned by a Spanish company called Puerto 80, is, in its home country, a legal website. But it might violate United States copyright law. (In case you forgot, "Rebroadcasting, or any other pictures, descriptions, or accounts of the game, without the NFL's express written consent, is strictly prohibited.") It also might not violate the law: so far, relatively few court cases have dealt with the question of whether linking to and embedding copyright-infringing content (as Rojadirecta, First Row, and ATDHE do) is criminal in the same way that hosting copyright-infringing content undoubtedly is. And though it’s still something of an open issue, in one recent case argued in front of the Seventh Circuit Court of Appeals, Judge Richard Posner ruled that linking is not illegal.
Which, really, is pretty intuitive to anyone who has spent a good chunk of time on the internet. If linking to illegal content is itself illegal, a huge percentage of the normal, functioning, and clearly non-criminal web would immediately become suspect. Should this article, for instance, be illegal, for linking to sites that link to infringing content? Should Google be illegal, for indexing this article if not for indexing First Row or Rojadirecta? These questions notwithstanding, because of a 2008 law called the PRO-IP Act, ICE is able to seize any domain—even one owned by a foreign company—if the registry they used was operated by someone based in the United States. Functionally, this means that .com and .org domains (respectively registered by Verisign and the Public Interest Registry, both based in Virginia) are much easier to grab than .eu and .me appellations, which are registered by the European Union and a company in Montenegro. It also means that those domains can be seized ex parte—that is, without any trial and without any chance for a response from the target—as long as an affidavit has been filed and a judge at the federal magistrate level or higher approves the seizure warrant.
This has led to a few case studies of extremely questionable due process, not only with regard to Rojadirecta, but also with the eerily similar case of Dajaz1, a Queens-based music blog whose domain was seized and held for about a year, then returned, like Rojadirecta’s, without its owners ever being criminally charged with copyright infringement. Statements from the Recording Industry Association of America openly admit that they specifically pointed ICE to the blog as an alleged copyright infringer, but when ICE requested proof, the RIAA stalled and eventually gave up. This all occurred despite the fact that, at least according to Dajaz1, some of the songs on which the seizure was based were intentionally leaked to the blog as part of a promotional effort. The Dajaz1 story—in which a private sector alliance sicced the government on a competing but equally legal business—concluded with the domain’s reinstatement and the blog’s continued operation.
It’s impossible to say for sure that the Rojadirecta case is exactly analogous to Dajaz1, but, at least on the surface, it looks awfully close. In the affidavit filed to approve the warrant for Rojadirecta’s (and others’) domain seizures, ICE mentions having worked with the NFL, NBA, NHL, and WWE. This publicly available information was more than I got from ICE when I asked them about working with leagues; their rep said only that, “As with all criminal investigations, initial leads are obtained through a variety of sources including, but not limited to, information from the general public, leads from industry representatives and information uncovered by special agents.”
Major League Baseball was not named in the affidavit, a wrinkle that is especially interesting considering MLB has arguably the best system currently in place for legally purchasing online streams of games. None of the other big four sell packages that allow for both live-streaming of most games and for same-day delayed streaming of blacked out games. It’s not a perfect system, and it’s pretty expensive, but it’s better than what anyone else is offering. MLB wouldn’t respond to my questions, either about whether or not they declined to take part in ICE’s investigation or about or about whether they have consciously tried to provide a legal online streaming product that outpaces extralegal options. Given MLB’s record on other copyright issues, either one of those may be overestimating the league’s tech-friendliness. And, as Mike Masnick at Techdirt suggested to me, MLB might have been left off ICE’s list simply because baseball wasn’t in season at the time of the raid. Nevertheless, by accident or not, MLB is currently set apart from the other major leagues, both in how it has adapted to the internet and in its lack of noted complicity with federal aggression towards companies working in the gray areas of U.S. copyright law.
The reason for pro leagues’ frustration with streaming sites is obvious: fans watching games online are consuming a product they own, and even if viewers are not streaming pay-cable channels, Rojadirecta is at least making ad revenue that the leagues do not see. But that doesn’t mean what they’re doing is illegal. In fact, if any sites clearly violated the law in this case, it was the stream-hosting sites, such as Mips, Veemi, and Ucaster. Visit for a minute and see: Rojadirecta is a hub of embedded streams, but the actual content is located elsewhere. When I asked Ragesh Tangri, a lawyer from the American firm that represented Rojadirecta, why ICE went after them instead of the hosting sites, his response was simple: “Good question.”
ICE couldn’t answer that question either (“We are unable to discuss specifics surrounding this case”), or any question I asked, with anything more insightful than the boilerplate I quoted above or the direction to ask the same questions elsewhere. For their part, every stream-linking website I tried to contact was even quieter, neither returning my calls nor responding to my e-mails.
The government may have gone after Rojadirecta in an attempt to “follow the money,” even if that money was meager. According to government claims, the site made about $5,000 a year from Google AdSense. But that’s more than the money made by those who make the streams available, who lack a clear financial incentive and presumably don’t see a dime from their actions. As in the case of early file-sharing services like Napster, those individuals who share files, along with those who stream copyrighted content, do so not because they’re making money, but out of the desire to give to others or some expectation of reciprocity. If they don’t share, others won’t either.
The similarities to the RIAA’s fight against piracy don’t stop there. When Napster was taken offline in 2001, knockoffs like Limewire Kazaa, BearShare, and Morpheus sprung up almost immediately--many heads of the hydra growing back to replace the one that was chopped off. More recently, the 2007 shutdown of private BitTorrent tracker Oink’s Pink Palace led to fast replacements in What.cd and Waffles.fm, and even an active competition between the two to attain the former’s throne. This year’s January shutdown of Megupload seems to have just driven users to already-extant alternatives, with no net effect on file sharing. These sorts of websites, if shut down in one place, will inevitably spring up in another, either in a different location under the same name (as First Row and ATDHE have), or as a spiritual descendant.
Aside from the question of whether this kind of piracy can be stopped by legislating it out of existence, is it helping the fans or professional leagues to try? The United States government has its answer ready. At the time of the 2011 raids, U.S. Attorney for the Southern District of New York Preet Bharara stated that "[t]he illegal streaming of professional sporting events over the Internet deals a financial body blow to the leagues and broadcasters who are forced to pass their losses off to the fans in the form of higher priced tickets and pay-per-view events.” And similarly, ICE told me that
[L]arge scale copyright infringement, often committed by overseas entities, has an adverse impact on the economy, jobs, and creativity of the United States. Federal criminal copyright law protects rights holders and law enforcement continues to explore innovative and more traditional enforcement vehicles to combat the theft of America’s intellectual property.
But, to return to music file-sharing wars of the early ‘00s, it’s hard not to think of the hundreds of thousands of music fans alienated by the Recording Industry Association of America’s attempts to stomp on their new toy. Public opinion of the music industry, as well as of the willing saps like Metallica that the industry threw up in their way, was irrevocably damaged by the RIAA’s determination to work against instead of with its consumers. And the continued insistence from the industry that piracy drives up prices didn’t change the fact that higher music prices were driving more people to piracy.
The word “theft” in ICE’s statement is a telling indicator of how they are choosing to frame the issue. On a purely theoretical level, intellectual property law stands on much trickier ground than does physical property law. When intellectual property is infringed upon in order to stream a sports game, the beneficiaries are clear: people who wouldn’t have otherwise seen the game get to, and sometimes someone else gets to show them more ads. The victims of the “theft” are indirect and less obvious, especially if the telecast were a major network broadcast; those are freely available via a different path, and it’s not like the existing ad profits are refunded. In this fascinating paper, written in 2009 by Stanford law professor Mark A. Lemley—also a member of the firm that represented Rojadirecta—argues that treating intellectual property with the same laws we use for physical property often stifles the same kind of innovation the laws are meant to protect. Lemley describes an upside down “U” shape, where nonexistent intellectual property and laws that treat intellectual property the same as physical property are both undesirable. When I asked if he thought this ruling pushes us further away from restrictive IP laws, and closer to the apex of the parabola, Lemley, via e-mail, gave an impressively perceptive response:
I think the issue of where we are on the curve is an interesting one, and different people definitely see it differently. To my mind, cases like Rojadirecta present a somewhat different question -- not the primary question of where we should set the limits of copyright law, but a "meta" question of how we decide the primary question. Put another way, if the government can seize and shut down any web site it wants for 18 months, it may not matter where we set the substantive legal standard, because the site could be out of business long before it can vindicate its rights. The principle we were fighting for in the Rojadirecta case was the right of web sites to a court determination of their legality before the government gets to shut them down. The fact that the government backed down is a positive sign.
The return of Rojadirecta’s domains is, indeed, a positive sign, even if it only happened because Puerto 80 hired a very good legal team to represent them. (They probably won’t be able to recoup the money they spent to do so; the law makes it especially difficult to recover legal fees when no suit actually went to court.) But the legality of streaming copyrighted content is a battle that is still to come, and nowhere does it have greater implications than for the world of sports. Live streams of TV and movies will eventually be outmoded by entire seasons of The Sopranos becoming downloadable in seconds, but this can never happen for sports, for which fans need to watch events live to enjoy them in context. ICE recognizes this reality as well in their affidavit: “There is significant value to consumers of being able to access [sports] content while the event is still in progress. Indeed, unlike other video content offered online, including television programs and motion pictures, which often remain popular well after its debut; sports fans' interest in viewing live sporting events is greatest while the event is happening.” You can’t download a match that hasn’t ended yet. And the more the internet becomes the central source, and not just a source, of media and entertainment, the more important this issue will be to the future of sports fandom.
If Rojadirecta makes only $5,000 a year from advertisements, maybe it’s because it’s avoided the extreme level of ad saturation that can be found on First Row and ATDHE. On those two sites, pop-ups jump out at the stream selection screen, and ads appear without warning and without an obvious way to close them. It’s undeniably obnoxious; no professional version of these streams would be this ugly and difficult to navigate. But, as I discovered earlier this year before I knew about the .eu versions of the sites, it wasn’t nearly as obnoxious as being unable to watch a Stanley Cup game when I had no other way of accessing it. And Tom Brady and I are not the only ones who have been frustrated. Most pro leagues just don’t have good systems in place right now for watching their games over the net, so others are stepping in to provide them.
A savvier music industry might have attempted to purchase Napster, or at least have struck an agreement that allowed them to profit off the site, as was famously offered in 2001. Instead, they tried to litigate file-sharing out of existence, just as the leagues are now trying to obliterate stream-linking websites. The major labels’ attempts to engage their online audience didn’t come until much later, with iTunes, and by then, considerable damage had already been done. It’s easier to excuse their mistakes given that they were acting without precedent, but that excuse doesn’t exist for sports leagues. For the sake of the NFL, NBA, NHL, and others, it’s hard not to hope that someone will learn these lessons from the past.
Thanks to Mike Masnick and Ragesh Tangri for their help in clarifying the background and specifics of these cases.