UFC on Piracy: Suing YouTube & Facebook Not Viable, They Hide Behind the DMCA

 

The Entertainment Law Institute and the Sports and Entertainment Law Society (SELI) at the University of New Hampshire recently hosted a panel discussion titled “Online Piracy of UFC Fights and Live Sports: The Role of Copyright Law.”

 

It featured Lawrence Epstein (Chief Operating Officer of the UFC), Debbie Spander (Founder and CEO of Insight Sports) and Ryan Vacca (Professor of Law at UNH Law). Since the UFC is very active in trying to shape legal policy in the streaming space, Epstein’s comments are of particular interest.

 

Epstein described the current piracy situation as intellectually “super interesting” but in practical terms, “incredibly frustrating”. He noted that the UFC has been negatively affected by piracy since its inception and until recently, the vast majority of its revenues came from PPV events, which are heavily pirated.

 

“A lot of people feel that piracy is a victimless crime, that there really isn’t that much damage that’s being caused. But as a creator of content, in particular of sports content here at the UFC, it’s a huge damage to us and it’s a huge damage to our athletes who are our partners with us in these events,” he said.

 

“It is a situation where unfortunately technology for pirates continues to get better and better and better, and this cat and mouse game we’re constantly playing gets more and more complicated every day. The problem is pervasive, it is consistent, it has never gone away, it likely will never go away.”

 

The problem according to Epstein is that the UFC is constrained by outdated laws, specifically the DMCA which hasn’t been updated for almost a quarter of a century. In particular, UFC’s COO feels that the takedown provisions of the DMCA are outdated and especially so when it comes to protecting live events.

DMCA is Ill-Suited to Dealing With Live Sports Events

“The reality is that to the content owner and creator, the DMCA is really a reactive tool. You as the copyright owner have to go onto YouTube, Facebook and Twitter and say, ‘hey – without authorization you’re displaying our copyrighted material.’ And through a variety of technology – whether it’s a takedown tool or notifications – you ask them to take it down.”

 

Epstein believes that this type of content removal is less than ideal because the value of UFC’s content is at its peak when it’s broadcast live and since most of the piracy takes place during that window, piracy has the greatest financial impact on the company. Under the current regime, takedowns simply do not happen quickly enough to make a difference when it matters.

 

“When you use one of these [takedown] tools or you provide notice, typically it takes a period of time, it’s not instantaneous. So if a UFC live [pirated] PPV stream is taken down 15 or 20 minutes after it was launched, the entire fight could’ve taken place. We just had a huge event with Conor McGregor and Dustin Poirier and that event took five minutes, so if a takedown takes ten minutes, guess what? People were able to view that without any disruption at all,” he explained.

 

“We certainly feel that this tool [the DMCA] doesn’t work anymore based upon the way people are stealing content and the way technology has evolved. The other reality is that the vast majority of piracy for our content and most content holders is the network providers, the OSPs – the Facebooks, the YouTube’s, the Twitters. They are in my view hiding behind the safe harbor and the DMCA and it’s happening to the detriment of content creators like us.”

 

Discussion moderator, SELI Director Michael McCann, asked Epstein how long a typical takedown takes to process. He responded that the system differs depending on the target, i.e the ‘networks’ (YouTube, Facebook, Twitter) and the ‘advanced’ platforms, UFC terminology for dedicated pirate sites. UFC’s COO refused to name the players in the latter group but was very happy to talk about the former.

 

According to Epstein, the UFC has access to takedown tools which in the case of Facebook means they are able to tackle streaming piracy fairly quickly. However, in a typical situation it takes between 8 and 10 minutes to take a stream down, which is unacceptable to them. Even if the UFC was able to take down pirate streams in five minutes, that wouldn’t be quick enough to suit their business model.

 

“This in our view needs to be the obligation and the burden of the OSPs or ‘networks’ as we refer to them,” Epstein said, adding that suing the big platforms into compliance isn’t an option under current law.

 

“As far as suing Facebook or YouTube, we’ve looked at it and the current legal landscape is not favorable to us. So we’ve taken a look at it and we just don’t think there are any claims that we could credibly assert.”

UFC: We Need Takedown-and-Staydown

McCann raised the issue of the key changes that the UFC and similar organizations are looking for, i.e a takedown-and-staydown system, in which platforms such as YouTube and Facebook would be notified of infringing content once, be compelled to remove it, and then keep the same content off the platform while monitoring for repeat infringers.

 

But how likely is it that something like that could be put in place?

 

“We think that this burden-shifting is something that has to occur on these big platforms. The vast majority of piracy is taking place on household names, on Facebook and YouTube. So these big platforms that are making tons and tons of money have to take responsibility for what happens within their ecosystem,” he said.

 

“The staydown system does exactly that but right now, the prospects of something getting done are tough. We know that in general it’s tough to get anything done in Washington but technology-related issues, intellectual property-related issues, even though there seems to be some cooperation, it never seems to get done.”

 

As an exception, Epstein referenced the Protecting Lawful Streaming Act passed late last year, which closed the so-called streaming loophole by making the streaming of infringing content a felony. Changing the DMCA is a different matter, however, with UFC’s COO describing it as ‘heavy lifting’ despite having worked on it for more than a decade.

Make The Platforms Liable, They Have The Tools Already

The UFC believes that the solution to the problem is actually very simple. If they can hold the major online platforms liable for what their users are doing and take action in response, the problem can be mitigated to a point that would prove acceptable to the combat sports organization. And it’s not as if YouTube and Facebook don’t have the tools available to make it happen.

 

“They do it already right now. We’re hearing it in the media how they are filtering out certain contents, terrible things such as [CSAM] and other things like that are somehow being filtered off these sites and not allowed to be posted up,” he explained.

 

“We know they have the technology and now we have to give them the will, and the only way frankly is to require them to do it via federal law. [The DMCA] is currently allowing the foxes to design the hen house here and they’ve done a really, really good job of creating a landscape that is just as favorable as it possibly could be for them and as unfavorable as it could possibly be for content owners.”

 

Epstein believes that by simply seeking a level playing field, with major platforms policing their own users, the UFC’s demands are not a big ask. However, Ryan Vacca (Professor of Law at UNH Law) raised the issue of whether requiring big companies to implement takedown-and-staydown systems would have a chilling effect on smaller players trying to enter the marketplace.

Chilling Effects?

The problem is that startups, which could be the next big thing, necessarily have to start small and could find it difficult to make significant financial investments to be compliant in a marketplace where takedown-and-staydown is required by law. Vacca also raised the issue of whether a takedown-and-staydown system would be able to recognize when a piece of content is allowed under fair use.

 

Epstein felt that neither would be an issue. Asking for content not to be pirated on a platform simply isn’t unreasonable and all legislative fixes have pluses and minuses, he said. People need to look at the proposals “in totality” and how to the best of their ability they try to level the playing field.

 

“The status quo is not cutting it for content creators and so in my view, I think whatever negative connotations you could throw on this thing about chilling certain types of thought, or whether it’s cost associated that may stop smaller tech companies, I think it’s far, far outweighed by the reality of the damages that are currently occurring and the unfair situation that allows this to continue.”

Tech-Savvy Jake and Logan Paul Fans “Love to Steal”

One of the questions put to the panel involved a scenario where YouTube and Facebook are brought under control but then UFC’s 18 to 40 demographic finds smaller piracy sites where they can still illegally stream events. That is not just a concern, Epstein said, but already a reality, which he chose to frame around fans of two of the most popular social media/sports crossover stars.

 

“It’s beyond worry, it’s real and it’s getting worse,” Epstein said. “I’m sure people have seen some of these crazy sort of spectacle events that have been taking place with Jake Paul and Logan Paul fighting ex-UFC athletes or boxers etc. That has brought in a very young and very piracy-savvy demographic to the world of combat sports,” he said.

 

The end result of these events (which detractors label ‘freak shows’) is that the UFC is seeing an uptick in piracy due to the type of fans they attract. They want content but they don’t want to pay for it and fans of the Pauls are among the worst.

 

“Young people are tech-savvy and unfortunately this Jack Paul, Logan Paul crew. These guys are a bunch of…, they bring in a demo that loves to steal. It’s getting worse.”

Could The UFC Do More to Accomodate Fans?

Finally, a contributor to the discussion asked whether the UFC could do more to adjust its business model to ensure that pricing on its PPV events is more affordable for those tempted to pirate. Has the company even considered that?

 

“The answer is we have. We look at it in respect to the mix of events that we put on and we’ve seen a fair amount of data that shows that people steal on a percentage basis more of the smaller events than they do the bigger events,” Epstein revealed.

 

“They don’t want to miss the Conor McGregor fight because the [pirate] stream has been taken down, so they’re willing to pay for that typically. As a portion it’s the smaller events that they’re stealing so we have looked at that,” he added.

 

Epstein said that UFC’s own piracy focus group considered whether people getting smaller events for half the price, for example, would make a difference. For some people, it might make a difference between piracy and going legal but the UFC hasn’t done anything about this since it hasn’t figured out how to “crack the pricing”.

 

Either way, they’re not convinced that such a change would make a particularly big difference and as such, the emphasis appears to be on legislative change. How long that will take is anyone’s guess but takedown-and-staydown systems are popular among almost all major rightsholders globally, so this topic is likely to remain on the US agenda.

 

The full panel discussion can be watched here