Court Issues Highly Questionable Restraining Order Over Anyone Even Remotely Related To Streaming Mayweather/Pacquiao Fight

from the that's-not-right... dept

Last week, we wrote about HBO and Showtime teaming up to pre-emptively sue two websites that publicly claimed they were going to live stream video footage of the Floyd Mayweather/Manny Pacquiao boxing match that happened this weekend. As we noted, it seemed odd to sue someone for infringement prior to the copyrighted content even existing, but as some helpfully noted, US copyright law includes a weird provision, 17 USC 411(c), which notes that when you're talking about works where "the first fixation of which is made simultaneously with its transmission," then "the copyright owner may, either before or after such fixation takes place, institute an action for infringement" given a few, pretty basic, conditions. In other words, while rare, the law does allow for just that sort of lawsuit for anticipatory infringement.

Thus, it shouldn't be too surprising that the judge, in fact, granted the request for a temporary restraining order on the two sites in question, boxinghd.net and sportship.org. Frankly, I have no idea if either one of the sites carried through on their promise to stream the fight this weekend, though I imagine it would be fairly dumb of them to have actually done so. From a cursory check, as I type this, it appears both sites are completely offline, so perhaps they both just shut down rather than deal with the threats from HBO and Showtime (or, perhaps, just moved to alternate domains).

However, as EFF points out, the court's temporary restraining order issued in the case goes way, way beyond just restricting those two sites, and raises some really serious concerns. Specifically, the restraining order didn't just restrict those two sites from showing the streams of the boxing match, but basically anyone who is sent the order:
Each and every one of the Defendants and their agents, servants, employees, officers, attorneys, successors, licensees, partners, and assigns and all those acting in active concert or participation with any of them, including any and all service providers who receive notice of this Order, are temporarily restrained and enjoined...
As the EFF points out, this is de facto SOPA -- allowing copyright holders to simply point at a site they don't like, claim they're "bad" and basically order them off of the internet by merely sending a copy of the restraining order:

You may not feel much sympathy for the websites in question. But this kind of site-blocking, without real legal process, is essentially one of the worst parts of the ill-conceived, long-dead Stop Online Piracy Act (SOPA) being brought in through the courtroom back door. HBO got an order to block content against those who act as intermediaries, even though they have nothing to do with the alleged illegality of the sites, are simply providing normal business services, and almost surely had no notice that they were about to be enjoined.

This is not the way our legal system is meant to work, and the good news is that it actually doesn’t. Federal Rules only allow courts to issue injunctions against those who truly are in “active concert or participation” with bad actors. We doubt that those who offer hosting services and video delivery, without more, can properly be considered in “active concert or participation” with the unauthorized streamers.

As the article above points out, it may not seem all that sympathetic considering these kinds of sites, but take it a step further. As we already discussed, whether or not these sites actually streamed any parts of the fight, the fight was widely streamed -- but via Twitter's Periscope service. And, under the terms of this order, if HBO or Showtime had sent this order to Twitter, it could be found to have violated a court order despite not even remotely being a party to the case!

I don't care what you think about those who might have streamed the fight in an unauthorized way, you have to admit that there are clear due process concerns when a court pushes such a broad order, that ties the hands of those who might not even have been aware of the court case at all, let alone that it was legally restricting their ability to operate (in a way that might also be technically impossible). Yes, this may have been convenient for HBO and Showtime, but it's difficult to see how that temporary restraining order is even remotely constitutional (or sensible).

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  • icon
    Ninja (profile), 4 May 2015 @ 9:11am

    ...if HBO or Showtime sent this order to Twitter, it could be found to have violated a court order despite not even remotely being a party to the case!

    While I do agree that it is absurdly broad, wouldn't Twitter be protected under section 230 since they are not actively advertising they would be hosting the event and everything from said event came from users and may be fair use? If Twitter receives the restraint order what would happen if the users posted stuff anyway?

    I mean, it is impossible to prevent everything real time, it is as simple as that so can the judicial or a law request the impossible for a service provider? I'm willing to bet no, they can't.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2015 @ 10:53am

    From a cursory check, as I type this, it appears both sites are completely offline, so perhaps they both just shut down rather than deal with the threats from HBO and Showtime (or, perhaps, just moved to alternate domains).


    ...beginning no later than 8:45 p.m. Eastern Time on May 2, 2015, all service providers whose services will enable or facilitate Defendants’ anticipated infringement are ordered to suspend all services with respect to Defendants’ Infringing Websites. This includes Namecheap.com, Inc., Enom, Inc., Hostwinds, LLC. as well as all other hosts, registrars and name servers


    Their hosts, registrars, and name servers were ordered to take the sites down. Why are you then wondering why the sites are down?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2015 @ 11:06am

    so why doesn't someone who can, take the judge to one side and stick an almighty FUCK into him/her and order them to learn the law he/she is supposed to be upholding? a threat of early retirement might not go amiss if he/she doesn't buck up!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2015 @ 11:11am

    I would expect that that the likes of HBO will no doubt would have sent this court order to a website that is hosted in say Tobago with a .to TLD if it was known that this website would have been streaming the fight and to the registrar in Tobago where this website was hosted on to get the domain removed even though the a US court order does not apply outside the US.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    antidirt (profile), 4 May 2015 @ 11:26am

    as some helpfully noted, US copyright law includes a weird provision, 17 USC 411(c)

    I'm glad you finally looked at Section 411(c). You claimed in your earlier post: "You can't sue over theoretical infringement. You have to show actual infringement." That was totally wrong. Funny, and wrong. It's funny because you embedded the complaint in the post, and Section 411(c) was cited multiple times therein. It was mentioned three times on the very first page. It's hilarious that you definitively claimed that such suits are impossible, when it's obvious that you had no idea what you were talking about.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 4 May 2015 @ 11:31am

      Re: Funny, and wrong.

      We really ought to give up. It's like teasing barking rats.

      reply to this | link to this | view in chronology ]

      • icon
        Gwiz (profile), 4 May 2015 @ 11:50am

        Re: Re: Funny, and wrong.

        Hey AJ, how do you feel about Blue thinking you are teammates?

        reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 4 May 2015 @ 11:58am

          Re: Re: Re: Funny, and wrong.

          Also, I don't think AJ's (antidirt) original comment deserves to be hidden. Although the comment is worded a bit snarky-ish, it is true that AJ pointed this out on the original article and that he was right.

          reply to this | link to this | view in chronology ]

          • icon
            antidirt (profile), 4 May 2015 @ 12:08pm

            Re: Re: Re: Re: Funny, and wrong.

            Also, I don't think AJ's (antidirt) original comment deserves to be hidden. Although the comment is worded a bit snarky-ish, it is true that AJ pointed this out on the original article and that he was right.

            Yes, it was snarky. Seriously, though, I think it's important to note how sloppy Mike is with this stuff. In this post, he's now claiming it's unconstitutional. I doubt very much he's done any homework on this claim either.

            reply to this | link to this | view in chronology ]

            • icon
              James Burkhardt (profile), 4 May 2015 @ 12:50pm

              Re: Re: Re: Re: Re: Funny, and wrong.

              As ctied by the EFF post being quoted: Federal rules of Civil proceedure, Title VIII, rule 65, section (D) part (2):

              (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

              (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).
              Given the complaint is that the order is overbroad because it claims to hold against parties not covered by any of those 3 situations, like hosts who are passive participants. This is explained in the article. This order could pull down any deemed to be infringing by the Copyright holders. Even those streaming their own video from inside the building, which avoids all of the copyright claims by the broadcaster (yes, there might be a violation of the contact they agreed to to get admittance, but thats not a copyright claim). Therefore, the injunction represents an over broad restriction of speech, which are regularly held to represent a violation of the First amendment.

              I mean, since you needed that logic spelt out to you.

              reply to this | link to this | view in chronology ]

          • identicon
            RD, 4 May 2015 @ 12:59pm

            Re: Re: Re: Re: Funny, and wrong.

            Fuck him. He has been willfully blind and intentionally misleading (as well as ducking every single point made, then declaring victory when he refuses to answer anything that isn't ultra-pro-copyright) so he has used up any goodwill or benefit of the doubt here.

            Fuck him.

            reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 May 2015 @ 11:29am

    So who was right: me or Masnick?

    Yes, ME again. Heh, heh. Told you a restraining order was nothing new. Masnick's ideology-driven notion of law fails yet again, keeping his record a nice even zero.

    And now after it sailed through, Masnick and pirates are reduced to whining that it's unconstitutional.

    This is simple, clear, and without worries. Just read the law Masnick puts up there after the fact: when you publicly announce intent to infringe, you are subject to injunction.

    Using someone else's content is simply illegal.

    reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 4 May 2015 @ 11:45am

      Re: So who was right: me or Masnick?

      So who was right: me or Masnick?

      Yes, ME again. Heh, heh. Told you a restraining order was nothing new. Masnick's ideology-driven notion of law fails yet again, keeping his record a nice even zero.


      Too funny Blue. You've been so completely wrong on so many subjects that it's hard to keep a tally going. But whatever, gloat away because you almost got one correct (explained below).


      This is simple, clear, and without worries. Just read the law Masnick puts up there after the fact: when you publicly announce intent to infringe, you are subject to injunction.

      Only if it meets the requirements of 411(c), which only covers live events. Otherwise that is not true at all. I could announce that I was going to re-publish your copyrighted book all I want, but unless I actually do re-publish your book, I have not done anything subject to an injunction.


      Using someone else's content is simply illegal.

      Only if you ignore Fair Use. So once again, you are close, but not quite right.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 4 May 2015 @ 11:47am

      Re: So who was right: me or Masnick?

      Just read the law Masnick puts up there after the fact: when you publicly announce intent to infringe, you are subject to injunction.
      And as I pointed out then (because this injuction is exactly what ws asked for), and Mike points out in this article, the injunction applies far more broadly then those who 'publicly announced intent to infringe'. The injunction functions against anyone, not just those who have performed the threat. Federal Rules only allow courts to issue injunctions against those who truly are in “active concert or participation” with bad actors. Unfortunately, the injuction targets hosts and embedded streams posted by users, to sites that had not announced intent to infringe, did not plan to infringe, would not have profited from the infringement and quite likely would have taken steps to removing the infringing content. But instead of getting it taken down, they could have just shut down the site by declaring it a bad actor, no legal recourse available. That is why this overbroad order is unconstitutional, not because it is an injuction against the websites in question.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 May 2015 @ 11:52am

      Re: So who was right: me or Masnick?

      Why are you using this blog's content?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2015 @ 11:46am

    It's kind of a non-issue at this point though, for this particular case. The TRO only required that the sites were down until 6am Sunday morning, and that time has passed. Whether the sites are up now is outside the scope of the order.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 4 May 2015 @ 11:57am

      Re:

      Not entirely. See, after getting an order like this, a domain registrar or host could be unlikely to be willing to reinstate the site. Moreover, the Domain Registrar might not be willing to transfer the domain because the 'temporary' restraining order gives no such time limit on the prevention of the transference of the domain, locking them out. You can argue that the sites deserved it. However, because the order could apply to any site declared a bad actor beyond the two in question, legitimate sites could have been taken down, and then been locked of their domains.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 May 2015 @ 12:27pm

        Re: Re:

        The TRO in general expires on May 7, so the domains could be transferred after that unless the TRO gets upgraded to a full injunction. It certainly could get upgraded though; I've seen it happen all the time to domains used for sales of counterfeit goods.

        At that point, however, I would expect that the injunction specifies which domains actually streamed the fight as those that needed to be blocked, and statements as vague as those in the TRO wouldn't carry over.

        I agree that the order is overbroad, but if I was being very forgiving, I could chalk that up to a rush to get the order signed and out the door before the fight. It might not even have been delivered to hosting companies early enough to have an effect.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 4 May 2015 @ 12:52pm

          Re: Re: Re:

          If the TRO in general has not yet expired, then an over broad order with provisions that could still be in effect is very much not a "non-issue" which was my point.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 May 2015 @ 12:59pm

            Re: Re: Re: Re:

            Fair enough. In my initial post, I was only speaking to whether the sites were up or down and the Sunday 6am restriction, but your observation on the lack of similar limitation on the rest of the TRO is accurate and a good point.

            reply to this | link to this | view in chronology ]

  • identicon
    Simon, 4 May 2015 @ 12:11pm

    The court probably meant well but acted without any common sense

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 May 2015 @ 2:36pm

    Repost: a little whack-a-mole because pirates enjoy clicking "report"!

    So who was right: me or Masnick?
    Yes, ME again. Heh, heh. Told you a restraining order was nothing new. Masnick's ideology-driven notion of law fails yet again, keeping his record a nice even zero.

    And now after it sailed through, Masnick and pirates are reduced to whining that it's unconstitutional.

    This is simple, clear, and without worries. Just read the law Masnick puts up there after the fact: when you publicly announce intent to infringe, you are subject to injunction.

    Using someone else's content is simply illegal.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 May 2015 @ 6:09pm

      Re: Repost: a little whack-a-mole because pirates enjoy clicking "report"!

      Sad little man. I weep for you.

      reply to this | link to this | view in chronology ]

      • icon
        Gwiz (profile), 4 May 2015 @ 6:43pm

        Re:

        Sad little man. I weep for you.

        Not me.

        Blaming "pirates" because someone's usually wrong, condescending and generally annoying comments get down-voted by the majority of the readers here is stupid. Doing that exact same thing for years and years is really, really stupid in my book.

        I've got no sympathy for Blue. Sometimes an old dog is just simply too stupid to learn new tricks.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 May 2015 @ 5:25am

      Re: Repost: a little whack-a-mole because pirates enjoy clicking "report"!

      Yes, because everything is created in a total media vacuum. /sarcasm

      I'm so sick of this argument. Everything is built off 'using someone else's content' in one way or another. People use fan works as a way to practice their craft to aspire to their own works, which is inevitably dervitive in some way. People locked out of ligitimate means of content access (Like people who paid almost 100 dollars for a single show fight by the sounds of it) utilize your 'illegal' sources, in this case probably to get what they actually PAID for, or as a means to help spread something they love, to bring in more viewership and attention to it, leading to further opportunities for the *retch* 'property' holders, which is then on them to capitalize on the opportunity.

      This isn't even getting into legitimate content that was attacked for standing within a block of their 'infringement' that hadn't even happened yet, the negative publicity generated by not only nuking a livestream from the past but also then failing to deliver it themselves, the number of unserved consumers who never had a chance to access the content to begin with now with more of a reason to not bother with content that could have been monetized or better distributed, and the ETERNAL game of whack-a-mole rights holders waste time and money on in some self-serving, egotistical notion that they and they alone can command human decency and morality to their own whims and profit.

      No, using someone else's content is not 'simply' illegal. There are provisions for that in the US at the very least, and various rules elsewhere (slowly being standardized to impossible-to-enforce degrees under the direction of people who refuse to understand their customers, the logic of infinate availability or indeed the market itself.

      I agree its unconstitutional, overly broad and absolutely absurd should the previous two arguments not hold to your standard.

      They may as well deem ants illegal, and go on a broad, sweeping campain to eliminate them from the world. It'll be about as effective, and make about as much sense, as them trying to tell the world to ignore the wonders of modern technology just so they can make another couple grand on their multi-billion dollar project. Hell,I bet they'd have more traction with an anti-ant campaign. I bet more consumers hate ants than infringement.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2015 @ 5:37pm

    out_of_the_blue just hates it when due process is enforced.

    reply to this | link to this | view in chronology ]

  • identicon
    Oliver, 4 May 2015 @ 11:50pm

    PRIOR RESTRAINT?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 May 2015 @ 3:13am

    Techdirt doesn't censor, just hides.

    Reposted: a little whack-a-mole because pirates enjoy clicking "report"! The kids get most angry at this tactic.

    So who was right: me or Masnick?
    Yes, ME again. Heh, heh. Told you a restraining order was nothing new. Masnick's ideology-driven notion of law fails yet again, keeping his record a nice even zero.

    And now after it sailed through, Masnick and pirates are reduced to whining that it's unconstitutional.

    This is simple, clear, and without worries. Just read the law Masnick puts up there after the fact: when you publicly announce intent to infringe, you are subject to injunction.

    Using someone else's content is simply illegal.

    reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 8 May 2015 @ 8:37am

      Re: Techdirt doesn't censor, just hides.

      Repeating something for the third time does not make it any more correct than before. For those playing along at home, take note how Blue was unable to respond to the rebuttals of this comment, but still feels the need to re-post it once again.

      Also take note of how Blue attempts to minimize the intelligence of Techdirt readers by calling them "pirates" and "kids" when the actual facts show that the majority of Techdirt readers are highly educated professionals.

      https://www.quantcast.com/techdirt.com?country=US#!demo

      reply to this | link to this | view in chronology ]


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