Texas Court Orders Sports Streaming Sites To Be Blocked In Anticipation Of Piracy
from the pre-crime dept
A few years ago, we wrote about HBO and Showtime’s somewhat novel decision to file a lawsuit against two sports streaming sites for copyright infringement that both claimed would happen… in the future. The lawsuit was filled with understandably novel language, but the fact remained that this was something akin to pre-crime enforcement, best demonstrated in the film Minority Report. One of the chief axioms of American law is that a crime must have occurred for punishment to be doled out. Injunctions are a departure from that, but actually suing for infringement when that infringement hadn’t happened yet and, indeed, when the content to be infringed didn’t even yet exist, seemed like a departure from the way the law works.
But perhaps this is a practice we’ll see expanded, as it seems to be happening again. This time, a federal court in Texas has issued an injunction ordering ISPs to proactively block a group of streaming sites ahead of the Premier League cricket tournament.
This is also the path Indian media outfit Times Content Limited (TCL) decided to go down. The company operates the cricket channel Willow TV and owns the US broadcasting rights to the Indian Premier League cricket tournament, which is currently ongoing. Two weeks ago the company sued several sports streaming sites including smartcric.com and crickethdlive.com. These sites allow users to watch cricket games for free over the Internet, without permission. To stop this from taking place, the Indian company requested a broad injunction, which the court granted last week.
The preliminary injunction (pdf) orders various third party providers to stop working with these sites effective immediately to prevent future copyright infringements. This also applies to any new domain names or websites the operators may launch.
Now, there are a couple of things to stipulate here. The websites in question appear to be common sports streaming sites that regularly infringe on the copyright of others. The injunction also suggests that Willow TV has attempted to communicate with the sites many times and has not received much in the way of a response. Whatever you think about copyright and sports streaming sites, it’s not like Willow TV has no reason to complain here.
Still, when one paints a picture of justice on a legal system canvas, it’s not simply about what picture you paint but how you paint it that’s important. After all, precedence is a thing, as are the norms of how the law is carried out. The injunction’s inclusion of language like the following seems to set us all on a dark path to prior restraint of speech.
…all service providers whose services will enable or facilitate Defendants’ anticipated infringement are ordered to suspend all services with respect to [ the offending websites]…
Again, whatever you might think of sports streaming sites such as the defendant sites, opening the door to broad injunctions on the basis of future infringement seems like a mistake. It’s a door that will almost certainly be barged through by copyright holders all over the place and is fertile soil for wanton abuse. The injunction goes to great lengths to acknowledge its order is based on all kinds of past infringing activities by the websites in question, but there is no clear standard for how much infringement must take place prior to a court being able to take down what is ultimately speech pre-emptively in anticipation of infringement in this way.
We must hope this practice is not expanded, or you can expect to see the collateral damage stories begin to appear.
Filed Under: anticipation of infringement, copyright, infringement, pre-crime, sports, streaming, streaming sites
Companies: tcl, willow tv
Comments on “Texas Court Orders Sports Streaming Sites To Be Blocked In Anticipation Of Piracy”
Pre crime
Not necessarily. Such stories would likely be damaging to the reputation of the entities pursuing these orders for prior restraint, and so sites that are likely to report such damaging stories could, under this precedent, be pre-sued for the defamation caused by the future reporting. The court would then issue an injunction precluding them from reporting on the collateral damage once it happened. (Since the stories have not yet been written, the sites will not be permitted to plead that true reporting is not defamation, because they have no evidence yet that their reporting will be true once written.)
Injunction on Nonparties
That…is an odd ruling. Generally, a court cannot issue an injunction on nonparties. See, e.g., Citizens Alert Regarding the Env’t v. U.S. E.P.A., 259 F. Supp. 2d 9, 17 (D.D.C. 2003), aff’d sub nom. Citizens Alert Regarding Env’t v. E.P.A., 102 F. App’x 167 (D.C. Cir. 2004)(
“[E]ven assuming arguendo that the Corps money were subject to NEPA, an injunction is not proper here because plaintiffs have not actually sued the Corps. As such, even if the Corps did fail to obey NEPA, that failure would not provide the Court a basis on which to enjoin JTSA (or any of the other state and municipal actors who have been named as defendants) from proceeding with construction of the pipeline. The Corps is not a party to this action, and the Court is therefore powerless to issue an injunction against it. See Fed. R. Civ. P. 65(d). Accordingly, the Court is unable to compel those who are parties not to act until the Corps complies with a directive that the Court simply lacks the authority to give.”)
The issue is that the court’s power to grant an injunction is bound by Rule 65 of the Federal Rules of Civil Procedure. Rule 65(d) states that the court may bind:
(A) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
The issue here is that the ISPs are not a party and are seemingly not acting in active concert with the actual parties. It seems like an enormous stretch to say that an ISP, by fetching information from any user-submitted URL, is acting in active concert.
Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
A) Businesses don’t have rights; persons ask We The People for permission to form a legal fiction, and agree to be bound by corporate law. There’s NO basis for objection to prior restraint on a legal fiction, not least because of that CONTRACT.
B) IN NO CASE does a business or even persons have right to supersede the “exclusive” right to control copies stated in the Constitution.
C) This will in no way or degree affect me or anyone abiding by the law, not even if 1000 are rubber-stamped every day by every court. Abiding by the law is this area is simple as DOING NOTHING, it’s just that you innate content-kleptos must actively RESTRAIN YOURSELF from a complex sequence of actions to break the law.
D) This (and more) WILL affect only infringers and pirates, so it’s good.
You could have and should have learned in the referenced instance because both “antidirt” and I stated it in advance of the injunction, that announcing intent to infringe is illegal and grounds for an injunction. I don’t know whether advance statements were made this instance, but doesn’t matter.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Copyright infringement is only a regional issue. For the vast majority of people in the world, it is literally a non issue. You are trying to force the entire world to act in the interest of protectionist assholes. No thank you.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Dear human, sorry my mistake… you are probably not one.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Well, that’s a lot to unpack.
A) Of course businesses have rights. In fact, it is a business which is requesting relief here. The businesses are either incorporated or established under state and federal law, not pure contract. (For further reference “corporate law” is not synonymous with “rights based in contract.”)
In regard to an objection to prior restraint? Both businesses and individuals have a right to object to prior restraint. It’s a first amendment issue and, in this case, its a jurisdictional issue for the court.
B) Copyright is generally an exclusive right and, in a case like this, is a strong basis for an injunction against the parties. I doubt many would object if the sight was enjoined from streaming whatever contest is at issue here. The issue is that the injunction goes far, far beyond that and enjoins nonparties, such as VeriSign, whose role here is a bit of a mystery, without prior notice or representation in the case.
C) Actually, this does affect others who are abiding by the law. The injunction is largely focused on nonparties to the case, such as VeriSign and others, who have only a tangential relationship to this dispute. And by tangential, I mean they exist as a part of the internet backbone and have as much to do with my actions as a phonebook printer which prints my telephone number. This ruling likely exceeds the authority of the court and is far beyond its subject matter jurisdiction. Put simply, this is a big deal.
D) As I said in response to C), this affects many, many more people than infringers and pirates.
Re: Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
“A) Of course businesses have rights.”
Aren’t corporations “people” now?
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
I would only add to the responses here that techdirt in no way was sticking up for infringers.
Every time one of you wants to use the argument that “we” are all “pirates”, or that techdirt defends criminals, it tends to trash any potentially valid points you might have.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Prior restraint is illegal
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Wrong. Absolutely wrong.
There is no "right to control copies stated in the Constitution." The Copyright Clause grants Congress the right to create copyright laws and specifies the means to do it. It does not, in and of itself, grant any rights to anyone other than Congress. Nor does it imply that Congress had to create any copyright laws at all. They could have decided to not create any copyright laws whatsoever, if they wanted and could still create laws that reverse all of our existing copyright laws if they felt so inclined.
As such, The Constitution itself most definitely does supersede any copyright laws created by Congress.
So, you are absolutely and completely incorrect on this point, Blue.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
A) Wow, it’s really weird that someone named their child “Times Content Limited” then.
Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
Are you sexually arouses by being wrong? It’s the only rational reason you wouls continue to spout such absolute nonsense.
Re: Re: Techdirt defends site it admits infringes copyright. At what point are you going to quit sticking up for criminals?
I’m definitely sexually arouses by your being wrong.
I haven’t had a chance to chat with disconnected personalities since Artie Ziff weighed in on Scorpion — the TV show — not the man.
Please do share with us how your disconnected self blames TechDirt for why your doctors told you you are no longer allowed to drive… why your kids won’t come see you… why your beard gets longer every day but shaving is such a chore… and why Donald Trump is not an idiot.
What was it you were diagnosed with exactly? Naming the condition is the first step to being able to properly respond and treat it.
Best regards to all three of your personas.
Ehud
Obviously, we need to kill these people to prevent any possibility of them ever infringing on anything ever again. We have to be 100% sure such a thing can never happen again!
Won’t someone think of the children? Err…wait…I meant because terrorism for some reason!
Impeach the Judge
In preparation of some impeachable offense “your honor”, we are removing you from the bench preemptively now.
Yes, because that makes sense.
All that’s missing are the 3 telepaths to let us know when and how these future crimes will occur.
Re: Impeach the Judge
Now go shoot general Leopold Kaplan to prevent the precrime program from getting closed! It goes well with “We Can Remember It For You Wholesale”, “The Exit Door Leads In” and “Paycheck” just to stay in Techdirt-topics.
There once was a corrupt priest who sold indulgences so that Catholics wouldn’t have to go to confession to confess their sins. They could simply pay the corrupt priest to do it for them.
The corrupt priest made lots and lots of money selling indulgences.
One day a man approached the corrupt priest and asked to purchase an indulgence for the future crime of robbery. The corrupt priest named a high price and the man paid it.
Later that night, after a profitable day of selling indulgences to a bunch of suckers the corrupt priest ran into a masked man in an empty alley. The masked man at sword point robbed the corrupt priest of the very large amount of money on him from all his indulgences he sold.
The priest in fury shouted at the masked robber “I guarantee you, you’ll go to hell for this”.
So the masked robber replied “oh really? So then you’re selling counterfeit indulgences?”, and took off the mask, revealing that he was the guy who paid for an indulgence for the future crime of robbery.
History repeats itself, someone will find a way to abuse a system met to prevent ‘future’ crimes, without doubt.
If only courts had the power to “prevent” copyright infringement.
Oh wait!
“Any court having jurisdiction of a civil action arising under this title may . . . grant temporary . . . injunctions on such terms as it may deem reasonable to prevent . . . infringement of a copyright.”
https://www.law.cornell.edu/uscode/text/17/502
If only there were some other provision in the Copyright Act that allowed copyright owners to sue before a work has been fixed and for courts to issue injunctions before such fixation.
Oh wait!
“In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502 . . . .”
https://www.law.cornell.edu/uscode/text/17/411
Why Masnick has Timmy writing articles about the nuances of copyright law–and drawing legal conclusions therefrom–I’ll never understand. It’s so embarrassing!
You = totes clueless. Masnick = bigly joke. Me = LOL.
Re: Re:
You left out this part: "subject to the provisions of section 1498 of title 28". If you go to that section you see this:
Times Content Limited (TCL) is a business registered in New Delhi and the actual "fixation" of the copyright is not in the US. Just some more food for thought.
Re: Re:
Fucking hell. Wrong twice in one article. You must have a boner twice the size of Don tiny hands.
Re: Re:
out_of_the_blue just hates it when due process is enforced.
I thought Minority Report was supposed to be a warning, not a guidebook…
Re: Re:
They used to say that about 1984… you see how THAT worked out.
Injunctive relief
Injunctive relief should only be granted in those special cases where there may be damages that cannot be mitigated.
“Cannot be mitigated” (my words, IANAL) means that no amount of post-damages moneys or other things can make up for it.
An example of an injunction request would be: “If we don’t enjoin the bureau of prisons from killing Johnny for his bad crimes, we can never make up for it afterward.”
An example of an injunction request that details something that money could fix is “If you don’t stop them from selling these fake Superbowl shirts, we won’t sell our shirts, and we’ll lose the $50,000 license fee and the $450,000 proceeds we expected to raise from that investment.” This can clearly be resolved with money.
Worse yet, damages have to be proven to a threshold, and that’s not “your honor, these people did it in the past[not admissible] and they’ll do it again[speculation] and we could lose A LOT of money.”
Inunctive relief is used by the little guy to stop a gross injustice, or by large bullies. In this case, we see the latter.
Ehud
Re: Injunctive relief
Its content, they could lose kajillions. Daring to question made up numbers means you are a pirate lover. Because I know the big time pirates all watch … cricket?!?!
There’s no restraint like prior restraint.
They better ban birth of people because there will be more and more “pirates”.
Schrödinger's cat
Interesting concept here. The order might be prior restraint if in fact they were going to violate copyright. If they are not, then it’s a non-issue as no speech was restained.
So basically, for it to be prior restraint, they would have to break the law. Illegal acts (such as piracy) generally don’t get 1st amendment protection anyway.
Re: Schrödinger's cat
Why does Leigh keep posting fake nicks? And why does Masnick let him?
Re: Schrödinger's cat
If the injuncted non-parties could withhold service with a high degree of precision, you might be right. In practice, if they react to the injunction at all, the only way they reasonably can act (and this is even suggested by the injunction text itself) is to "suspend all services with respect to [the offending websites]". Note the critical classifier all. If the website is used for any purpose other than to infringe copyright, then this injunction effectively denies service both to infringing activity and legitimate activity. While that may not be illegal in all cases, it’s a much higher bar than saying that "only law-breakers will be impacted, so if they weren’t going to break the law, they have nothing to fear." Website blocking is often (but not always) done by IP blocking, so anyone who shares an IP address with the offending site might get blocked, too.
past infringing activities by the websites in question
So why aren’t they going after them for what they have done, not what they might do?
IANAL so help me understand...
There is a clear problem here. I get due process, but this is a situation where the legal system cannot act quickly enough to shut down a real time infringement. Sure, they can punish after. Is there a way to notify previous infringers and thus any future infractions would be considered willful or even contempt of court and carry higher penalties?
I can see both sides. Just wondering where folks thinks the middle ground compromise is…
Re: IANAL so help me understand...
The problem is with “exclusivity” in streaming sports events. Sorting that out would reduce, if not eliminate, the problem. The issue isn’t “property,” it’s artificial scarcity.
As long as there’s demand, someone will find a way to supply it.
Now let’s tie it together: the cable companies are claiming that they own the one-and-only source of broadcasting certain sports events. Streaming websites pop up and go, “Oh yeah?” Punters not wishing to fork out for PPV go on the streaming sites to get their sports fix and the cable companies flip their collective wig over people watching “their” sports event without paying for it.
Can you see what the problem is?
Okay, I’ll spell it out: if you make content easily available on multiple formats at a price the punter is willing to pay, you can actually beat the pirates, as Netflix recently proved. The cable companies are unwilling to accept this, hence the ever-more-draconian broad-sweep anti-piracy laws being enacted.