Ultimate Fighting Championship (UFC) President Dana White announces his offensive front on Internet piracy in July 2010, starting with popular online web streaming service Justin.tv:
"I can’t wait to go after the thieves that are stealing our content. This is a fight we will not lose."
The war isn't over, but the UFC is suffering major casualties on the battlefield.
That's because the world's largest fight promotion saw two of its primary arguments, Trademark and Communications Act, waved off by the powers that be in the United States District Court (Nevada). But was it an early stoppage?
Here is the initial filing:
Zuffa, LLC ("Zuffa"), owner of the UFC 121 Pay-Per-View event. Indeed, third-party contractors hired and paid for by Zuffa, removed more than 200 infringing live streams of UFC 121 from the Justin.tv website. This piracy represents a significant loss of revenue to Zuffa and its mobile, online, cable and satellite distribution partners each year.® ("UFC®") brand filed a lawsuit against Justin.tv, Inc. ("Justin.tv") for copyright and trademark infringement in United States District Court for the District of Nevada arising from Justin.tv's repeated and ongoing failure to meaningfully address the rampant and illegal uploading of video of live Pay-Per-View UFC® events by members and users of the Justin.tv website. ... For example, on October 23, 2010, over 50,000 people watched live streaming feeds of the
Zuffa further stated its intention to work with the popular streaming video website over the past couple of years to put an end to infringing activities, but claim they've encountered resistance and believe that Justin.tv had been actively working against them.
Here's why the courts disagreed (via Eric Goldman):
Trademark. Justin.tv argued that Zuffa's trademark claims were Dastar-ed. The court partially disagrees because Zuffa wasn't claiming reverse passing off. Nevertheless, Dastar wipes out Zuffa's claims about any trademarks actually embedded in the video stream, such as Zuffa's trademarked Octagon fighting ring, because trademarks would allow Zuffa to control the copyrighted material even after the copyright term expired. Instead, "the Court limits Zuffa's trademark claims only to the display of Zuffa's trademarkswhich are not an inherent part of the video broadcast." Whatever that means...! In a footnote, the court also "expresses extreme doubt" about Zuffa's trademark inducement claim.
Communications Act. Zuffa's claims relate to the "stealing cable" provisions. Justin.tv claimed that 47 USC 230 applies, a pretty logical argument given that Zuffa is bringing a non-IP claim against Justin.tv for third party content. However, the court sidesteps the Section 230 issue, saying it's never been applied to the Communications Act (true) and that the court couldn't find any analogous "stealing cable" claim against websites, and it didn't want to touch this "novel" issue.
Justin.tv was found not guilty of stealing cable because it "did not receive or intercept any actual cable or satellite signal or broadcast" and trying to hold it liable under the Communications Act would also implicate "cloud computing service providers such as Microsoft, Apple, Google, Amazon.com, Dropbox, Box.net, and others" who accept input of user media.
While unquestionably a crippling blow to the Zuffa case, there is still the matter of copyright infringement, which Goldman believes will (and should) should fall under the 512(c) safe harbor umbrella.
Is Zuffa fighting a losing battle?