Over the last century, sports media has drastically grown and changed as technology such as the television and the internet has shifted how sports media is digested. Broadcasting rights of sporting events are becoming more important alongside this growth. As of 2023, sports media broadcasting rights revenues are estimated to total around $26 billion USD, according to JPMorgan analysts.[1] Additionally, sports media consumption is shifting away from live television broadcasts and toward streaming services; as of 2018, around 30% of sports fans streamed sporting events on mobile devices.[2] Since then, sporting events on streaming services have exploded: Amazon acquired rights to exclusively stream Thursday Night Football (“TNF”) from 2023-2033; Apple TV secured a deal with the MLS to stream soccer matches from 2023-2032; and Max (formerly HBO Max) launched a live sports payment tier on its streaming service, which includes the Major League Baseball playoffs and NCAA Men’s March Madness.[3] Entertainment media, not just sports media, is now greatly stratified across many different streaming services, all with exclusive subscriptions. Forbes Advisor and OnePoll concluded that in 2024, 95% of Americans paid for more than one streaming subscription.[4] This shift to streaming services has made sporting events more accessible on more devices for more people, but only if the consumer is willing to pay more.[5]
During this shift from traditional cable television to streaming services, sports broadcasts have increasingly been illegally streamed.[6] This can have significant impacts to the bottom line of both streaming services and sporting organizations, as each person who streams sporting events illegally creates unrealized revenue. The potential loss of revenue due to illegal sports streams makes it important that these streams are shut down. However, these streams have grown and become more mainstream.[7] Despite such large growth of illegal sports streams, major sporting organizations have tried—albeit unsuccessfully—to remove these illegal streams.[8] On August 23, 2023, the NBA, NFL, and UFC submitted a joint letter to the United States Patent and Trademark Office alleging that the global financial impact of pirated sports streams costs sporting organizations up to $28 billion USD in annual revenue.[9]
To understand why pirated sports streams have flourished, the applicable underlying laws that streaming services and sporting organizations are subject to must be explained. Firstly, this area of copyright law is governed by the Digital Millennium Copyright Act (“DMCA”), which makes it unlawful “to circumvent a technological measure to access a copyrighted work, and then mak[es] it a violation to traffic in devices whose purpose is to circumvent the technological measure to either access the work or otherwise infringe the copyright.”[10] Under the DMCA, persons can submit a notice/request for takedown of copyrighted works (“DMCA takedown,” “DMCA request,” “DMCA takedown request,” or “DMCA notice”) to the service provider of the infringing work.[11] After a DMCA request is sent to the service provider, the service provider will expeditiously review and remove the content if the service provider determines that the content infringes on a copyrighted work.[12]
DMCA laws utterly fail when applied to copyright infringement of live entertainment. This is because the DMCA removal process is too slow, thus making it ineffective.[13] On average, DMCA takedown requests take around seventy-two hours to be processed.[14] Additionally, after a DMCA takedown request is filed, the alleged infringing party is afforded an opportunity to file a counter claim against the original filing party, which triggers a window in which the alleged infringing work cannot be taken down in.[15]
Unlike many other forms of entertainment media, the majority of a sporting event’s revenue is earned at one point in time: while the sporting event is live. This is because the outcome of the sporting event is unknown, which generates hype, and views. Thus, when a DMCA takedown request is sent to shut down a live sporting event, it likely will not be processed before the event concludes. Even if copyrighted works are flagged and taken down very quickly, this is still ineffective to stop pirated sports streams. Additionally, the streams almost always contain many different mirror versions of the stream.[16] These mirror versions of the streams are backups made in anticipation of a stream and even if an illegal sports stream is flagged and taken down, the viewers are often only one button click away from a working stream. Even if it were feasible for a pirated stream and all the mirrors to be taken down relatively quickly, this still would not solve the problem. The infringing sports media content is nearly always being live streamed from a brand-new account on the service provider’s platform.[17] And if this account gets banned, one thing happens: another brand-new account is immediately created by the infringing party and resumes streaming the infringing content.[18] Thus, it is nearly impossible to eradicate all illegal sports streams with one easy solution.
[1] Mike Ozanian, Inflation of Sports Media Rights is Unsustainable, JPMorgan Analysts Say, Forbes (2023), https://www.forbes.com/sites/mikeozanian/2023/05/01/inflation-of-sports-media-rights-is-unsustainable-jpmorgan-analysts-say/?sh=6051b50f1e3f.
[2] Jen Booton, 30 Percent of Fans Now Stream Sports to Their Phones, Tablets, Sports Bus. J. (2018), https://www.sportsbusinessjournal.com/Daily/Issues/2018/02/12/Technology/30-percent-fans-now-stream-sports-phones-tablets.aspx.
[3] See Amazon Thursday Night Football Page, https://www.amazon.com/salp/tnf (last visited Feb. 27, 2024); see also Apple TV+ MLS Season Pass Page, https://tv.apple.com/us/channel/mls-season-pass/tvs.sbd.7000 (last visited Feb. 27, 2024); see also Paramount+ NCAA March Madness Page, https://www.paramountplus.com/shows/ncaa-march-madness/ (last visited Feb. 27, 2024).
[4] Geraldine Orentas, Streaming Trends for 2024: 44% Report Streaming Costs Increasing Over the Last Year, Forbes (2024), https://www.forbes.com/home-improvement/internet/streaming-survey/.
[5] Stephen Graveman, Why More Viewers are Streaming Sports Including March Madness, Mntn. Research (2023), https://research.mountain.com/insights/streaming-sports/.
[6] Stephanie N. Horner, DMCA: Professional Sports Leagues' Answer to Protecting Their Broadcasting Rights against Illegal Streaming, 24 Marq. Sports L. Rev. 435, 435 (2014), https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/mqslr24&id=460&men_tab=srchresults.
[7] Henry Busnell, Inside the Complex World of Illegal Sports Streaming, Muso (2019), https://www.muso.com/magazine/inside-the-complex-world-of-illegal-sports-streaming.
[8] Ernesto Van der Sar, UFC. NBA & NFL Want to Fight Live Streaming Piracy With ‘Instant’ DMCA Takedowns, Torrent Freak (2023), https://torrentfreak.com/ufc-nba-nfl-want-to-fight-live-streaming-piracy-with-instant-dmca-takedowns-230828/.
[9] Letter from UFC, NBA & NFL to U.S. Patent and Trademark Office (Aug. 23, 2023), https://torrentfreak.com/images/UFC-PTO-C-2023-0006-0041_attachment_1.pdf.
[10] Digital Millennium Copyright Act (DMCA) § 103, 17 U.S.C. § 1201(a)(1)(A) (2024).
[11] 17 U.S.C. § 512 (2024).
[12] Id.
[13] Van der Sar, supra note 8.
[14] Claire Fountain, What is a DMCA Takedown? [+ How to File One], Don’t Do It Yourself (2023), https://ddiy.co/what-is-dmca-takedown/.
[15] 17 U.S.C. § 512(g)(2) (2024).
[16] See NFLBite Home Page, https://reddit1.nflbite.com/ (last visited Feb. 27, 2024); see also Buffstreams Home Page, https://buffstreams.app/ (last visited Feb. 27, 2024).
[17] Christian Arnold, Barstool Sports ‘laundered’ copyrighted content with 40 burner accounts: Daily Beast, N.Y. Post (2023), https://nypost.com/2023/09/11/barstool-sports-uses-burner-accounts-to-flout-copyright-law-daily-beast/.
[18] Cecelia D’Anastasio, Twitch Has Become a Haven for Live Sports Piracy, Wired (2020), https://www.wired.com/story/twitch-sports-piracy-streaming/ (“Once a stream is taken down, another immediately manifests. It’s like 40 games of Whac-A-Mole simultaneously taking place in 40 adjacent arcades.”).