SBJ/20100823/From The Field Of

How sports organizations can protect copyrighted content online

Copyright owners: Don’t expect website providers such as YouTube to go out of their way to help you protect your copyrights any time soon, because according to recent case law, the burden is on you.

On June 23, fans of YouTube and file-sharing generally rejoiced, while copyright owners experienced a significant setback in enforcing their copyrights. On that day, the U.S. District Court for the Southern District of New York threw out a billion-dollar copyright infringement lawsuit against YouTube and its parent company, Google.

The allegations against YouTube were that, essentially, YouTube makes copyright infringement easy and attractive, and it does so in order to profit handsomely from the misuse of the copyrighted works that it knows is rampant and ongoing on its site. The plaintiffs, led by Viacom, demanded that YouTube should be forced to police its own website and take down infringing content on its own rather than place the onus on the copyright owners to notify YouTube of the infringing activity, an expensive and time-consuming proposition.

YouTube already aggressively polices its website with respect to pornography, so the plaintiffs alleged that it could easily do the same for copyright-protected works. But the federal district court determined that the plain terms of the Digital Millennium Copyright Act (DMCA) don’t require site providers to go that far.

This issue is particularly important to sports organizations because of the nature of some of their most valuable copyrighted works. Sports highlights are attractive content to be uploaded and viewed on sites such as YouTube. The most valuable video content in sports might be only a few seconds of an entire match, game or bout, like the few minutes leading up to the goal that won the 2010 FIFA World Cup for Spain, or the final 10 seconds of Michael Jordan’s last game with the Chicago Bulls in Game 6 of the 1998 NBA Finals. Or the final 15 seconds of the 1980 Olympic hockey semifinals, where the decidedly ragtag, underdog U.S. team beat the favored Soviet Union 4-3.

There are certain memorable moments in each game, match or bout that generate buzz and excitement for an organization. It is in these moments that history is made and fans everywhere are drawn to watch a brilliant play over and over again. Inevitably, it is these most-valuable snippets that get uploaded to YouTube. Check it out. As of printing, the examples cited earlier can be found on YouTube, in numerous iterations. You can even see how many times each has been viewed previously.

Highlights of sports’ key moments can be uploaded
and viewed repeatedly on sites like YouTube.

This is a serious problem for many sports organizations, as their copyrighted content is easily pirated on sites such as YouTube. Anyone can post on YouTube, and the same clip can be posted an endless number of times. The proliferation of social media has only magnified the problem, allowing users of MySpace, Facebook, blogs and other websites to imbed YouTube videos directly into their pages.

A related concern is the ease with which real-time broadcasts can be uploaded and distributed over the Internet. Pay-per-view events, for example, are most valuable in real time. When these broadcasts are streamed for free over the Internet, sports organizations lose millions of dollars. While YouTube and other similarly situated sites usually (and are required to) have a mechanism that allows copyright owners to flag infringing content and bring it to the site providers’ attention, it sometimes takes days for the site provider to respond and take down the infringing material. By that time, irreparable damage has occurred.

For now, federal copyright law does not require site providers to police their own sites. As long as they provide a mechanism whereby copyright holders can request takedowns, and then they follow through with the takedowns, they will be protected under the safe harbor provisions of the DMCA with very little, if not zero, legal incentive to self-police their sites.

But the length of time involved in actually getting video content taken down can have severe consequences, particularly when applied to pirated video streaming of real-time content (such as pay-per-view broadcasts).

So what is the solution? Sports organizations may be able to strike deals with site providers allowing copyright owners to have certain web-master take-down privileges, such that a copyright owner can exercise self-help, in a sense, and not have to rely on the site providers’ staff to get the job done.

More generally, copyright enforcement can take up a large amount of an organization’s time and resources. The good news is that there are companies that provide copyright enforcement services. Depending upon your particular needs, these companies might be able to perform valuable protection services at lower costs than relying on internal staff.

The upshot to all of this is that YouTube and similar sites have exponentially increased the visibility of copyright owners’ works to the public, and one could argue that this increased visibility is great marketing. It also appears that YouTube changed many of its policies after Google came into the picture and is now more willing to work with copyright owners to achieve workable solutions.

Like most other problems in business, resorting to the courts for copyright enforcement should be a last-ditch effort, as there are often cheaper and more efficient alternatives out there.

Franchesca Van Buren (fvanburen@lrlaw.com) is an associate with Lewis and Roca LLP.

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