The May 2, 2015 boxing match between Floyd Mayweather and Manny Pacquiao was billed as the "Fight of the Century."[1] It broke many records, including the record for pay-per-view viewership in the United States with 4.4 million purchases and over $410 million in pay-per-view revenue.[2] The cost to order the fight on television was $89.95, plus an additional $10 for high definition.[3] Given that steep price and the high level of interest in the bout, the "Fight of the Century" may also have broken the record for most pirated live sporting event ever.
Federal law prohibits the unauthorized publication, use, interception, or reception of certain televised events, through the Communications Act of 1934 (47 U.S.C. § 605, et seq.) ("Communications Act") and the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553, et seq.) ("Cable Act"). Both statutes allow for a private right of action, i.e., any person harmed by a violation may bring a lawsuit to enforce the statute, not only the government.[4]
Anticipating high levels of piracy, HBO and Showtime—the joint producers of the fight's pay-per-view broadcast—even filed a lawsuit prior to the fight.[5] They sought a temporary restraining order against two websites that had allegedly advertised their intent to provide an unauthorized online stream of the fight,[6] and a federal court granted the request.[7] Separately, Periscope and Meerkat (which are smartphone-based live streaming apps) received numerous notices during the fight that people were using their services to illegally stream portions of the match.[8] Periscope's CEO said that he had a team in place to handle all takedown requests; the company reportedly received a total of 66 such requests from rights holders during the fight, responded to each one within minutes, and took down all 30 streams that were still broadcasting.[9] However, thousands of people were able to view at least portions of the pay-per-view event for free via live streaming.[10]
This backdrop indicates that it is likely there now will also be a round of lawsuits against businesses that illegally showed the fight. There is precedent for such pay-per-view piracy lawsuits. For example, in J & J Sports Productions, Inc. v. Mannecorp, Inc. et al., 2:14-cv-11694-MAG-MKM (E.D. Mich.) (complaint filed April 28, 2014), the exclusive television distributor of the May 5, 2012 Floyd Mayweather versus Miguel Cotto fight filed a lawsuit against a bar and its owner for allegedly showing that bout without authorization.[11] The complaint alleged willful violations of both the Communications Act and the Cable Act, consisting "of the interception and tortious conversion of [plaintiff's] property."[12] Specifically, the plaintiff alleged that "[w]ith full knowledge" that the televised fight "was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so," the defendants did so "willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain."[13]
The television distributor in the J & J Sports Productions case sought a staggering $170,000 in statutory damages, plus its attorneys' fees and costs of the lawsuit.[14] For a willful violation, both the Communications Act and the Cable Act allow for imprisonment, damages, reasonable attorneys' fees, and costs.[15] For example, the Communications Act allows an aggrieved plaintiff to recover an award of statutory damages of up to $10,000 for each violation, plus up to an additional $100,000 if "the violation was committed willfully and for purposes of direct or indirect commercial advantages or private financial gain."[16] Thus, the accumulative award for a violation can be significant.
Only time can tell what the consequences will be from the presumed widespread piracy of the "Fight of the Century." However, given the costs for television distribution rights, the distributors' ability to sue for violations under federal law, and the potential for hefty damages and attorneys' fees awards, it seems likely that—at the least—the distributors will explore the potential for litigation.[17] It is clear that the distributors will have significant ammunition to fight their own bout in court against willful pirates.[18]
[1] http://en.wikipedia.org/wiki/Floyd_Mayweather,_Jr._vs._Manny_Pacquiao (accessed 5/13/15).
[2] Id., citing "'Mayweather vs. Pacquiao Fight KOs PPV Revenue & Viewership Record' Deadline.com. Retrieved 12 May 2015."
[3] Id. citing "'Showtime & HBO Charging $90 For Mayweather-Pacquiao PPV – Update' Deadline.com. Retrieved April 30, 2015."
[4] 47 U.S.C. § 605(e)(3)(A); 47 U.S.C. § 553(c)(1).
[5] http://en.wikipedia.org/wiki/Floyd_Mayweather,_Jr._vs._Manny_Pacquiao (accessed 5/13/15); Showtime Networks, Inc., et al. v. John Doe 1 d/b/a boxinghd.net et al., 2:15-cv-03147-GW-MRW (C.D. Cal. Apr. 30, 2015) (temporary restraining order).
[6] Id.
[7] Id.
[8] http://www.theverge.com/2015/5/8/8565983/periscope-meerkat-piracy-boxing-mayweather-pacquiao.
[9] Id; http://espn.go.com/boxing/story/_/id/12822727/illegal-streaming-periscope-arises-concern-lost-pay-per-view-orders-floyd-mayweather-manny-pacquiao-fight.
[10] http://www.usatoday.com/story/tech/2015/05/03/periscope-meerkat-stream-mayweather-pacquiao/26832299/.
[11] J & J Sports Productions, Inc. v. Mannecorp, Inc. et al., 2:14-cv-11694-MAG-MKM (E.D. Mich.) (complaint filed April 28, 2014).
[12] Id. The complaint also alleged a state law conversion claim. Id.
[13] Id.
[14] Id.
[15] 47 U.S.C. § 605(e); 47 U.S.C. § 553(b).
[16] 47 U.S.C. § 605(e)(3)(B), 47 U.S.C. § 605(e)(3)(C)(i)(II), and 47 U.S.C. § 605(e)(3)(C)(ii). However, limitations may be imposed. See, e.g., 47 U.S.C. § 605(e)(2).
[17] The president of Manny Pacquiao's promotion company already indicated that they will seek whatever remedies they have regarding illegal streaming. http://espn.go.com/boxing/story/_/id/12822727/illegal-streaming-periscope-arises-concern-lost-pay-per-view-orders-floyd-mayweather-manny-pacquiao-fight.
[18] For further insight on the potential risks, challenges, and consequences of live online streaming, see FI&C attorney Jeff Cox's blog article from April 9, 2015 at: http://businesslitigationinfo.com/advertising-and-media/archives/what-do-meerkats-and-periscopes-have-in-common-live-streaming-technology-the-right-to-privacy-and-the-continuing-evolution-of-social-interaction-for-starters/ ("What Do Meerkats and Periscopes Have In Common? Live Streaming Technology, the Right to Privacy and the Continuing Evolution of Social Interaction for Starters").
