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Don't fight rights holders on illegal streaming

by David Newhoff

The February 3 cruiserweight bout between Australian boxers Anthony Mundine and Danny Green has been described in the press as an epic grudge match. In what sounds like a brutal ten rounds, with both fighters accused of landing cheap shots, and a decision on points giving Green the victory, many fans were outraged, feeling that Mundine was “robbed” by the judges. Of course, these were not the only controversies associated with Mundine vs. Green.

Although the match reportedly earned the second-largest pay-per-view audience in Australian history, it was also watched illegally via Facebook by at least a few hundred thousand viewers.

Two individuals, Darren Sharpe and Brett Hevers, were both identified by broadcaster Foxtel, rebroadcasting in this case to tens of thousands of viewers—Mr. Hevers stream is reported to have attracted 153,000 before Foxtel cut his subscription—would constitute criminal copyright infringement, hence the potential for jail time.

Instead of pursuing litigation, though, Foxtel opted to use the experience as what they hoped would be a teaching moment about piracy, accepting public apologies from both Hevers and Sharpe, which were published on their Facebook pages on February 9.

The subsequent replies to those apologies generally repeat a common refrain when pirating content - that "we wouldn't have paid for it anyway". This rationale, combined with any negative feelings toward a telecom or other provider, tends to create a Robin Hood Effect, with many consumers seeing guys like Hevers and Sharpe as heroes liberating society from monopolistic corporations. We see similar trends in the US, of course, and while I can be as frustrated with my cable provider as the next customers, it's an irrational justification for pirating a pay-per-view event.

For one thing, even if there were greater competition among content providers, a live sporting event like Mundine vs Green would still be a premium ticket with a PPV price damn close to the $60 (AU) subscribers paid to watch the bout legally.  As explained by Foxtel CEO Peter Tonagh in several articles about the illegal streaming, that fee is shared among multiple participants—including the athletes—who work to arrange, promote, and stage the event.  Moreover, the PPV price is arguably a common-man’s price compared to attending the fight live, which ranged between roughly $100(AU) for backwater seats to $2,039(AU) for prime table seating well within spit and blood range.

The larger point, of course, is that any provider has to make a considerable investment to make such an exclusive event available to a wider audience. And if Foxtel, or any other provider, were to simply let unlicensed streaming go, how many fewer paying customers will there be for the next event and then the event after that?

Below a certain predictable volume of paying subscribers, these events will cease to be made available because the investment would become too risky; and that’s how this sense of entitlement, leading to this type of piracy, can actually disenfranchise a whole market.

Sometimes Piracy “Logic” Cannot Be Answered

My colleagues and I in the States focus a fair bit of attention on the rationales and justifications for piracy, many of which are refuted by evidence.  For instance, piracy advocates have historically claimed that they wouldn’t pirate filmed entertainment if access were not so limited; but research proves that as producers continue to adapt to make more works available via more on-demand, digital platforms, piracy continues to increase rather than decrease.

Likewise, data reveals that piracy is most common among privileged consumers with the financial means to otherwise pay for legal access. This makes sense given the fact that chronic piracy requires a few things that consumers of limited financial means often do not have: high-tech devices, high-speed internet access, and leisure time.

My own view is that most often, piracy akin to Hevers' and Sharpe’s illegal streaming of this boxing match happens because it can, and not because of any deeply-considered—let alone wisely-considered—Robin Hood logic.  If anything, those rationales seem to appear as an after-the-fact justification; and in my experience, there really is no countering this sense of entitlement with evidence or any kind of moral discussion about the plain wrongness of the act itself.

This is consistent with my own observation that all rights holders - even small, independent artists - are expected to just be chill about the piracy of their works. 

The reality is that internet-enabled piracy has been so common for nearly twenty years, that it is a deeply-ingrained habit with a companion guide of pre-scripted justifications.  This makes a difficult framework for any kind of conversation with consumers. On the other hand, research does show that when piracy is simply not possible (e.g. when major pirate sites are shut down), that legal access increases.

As I say, quite often, people just pirate because they can; and the solution is to make piracy impossible, difficult, or not worth the risk.  The relatively new challenge of Facebook live-streaming implies taking an interdictory approach.

Facebook and Foxtel Working Together

Almost immediately after the Mundine-Green streaming incident, Facebook and Foxtel began collaborating on new methods to identify live streams of real-time broadcasts. Facebook already has tools for rights holders to identify streams of movies and TV shows, but live PPV events pose a new challenge for the social media company. 

Although streaming in this manner is a violation of Facebook's US Terms of Service, we in the US are certainly not used to platforms enforcing their own rules where copyright infringement is concerned. This is largely due to the fact that our "safe harbor" liability shield enables platforms to leverage and monetize user infringements in a manner that was never intended when our Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. 

In Australia, a platform like Facebook is not shielded from liability by the same safe harbor statutes that protect an Internet Service Provider (ISP). This may be a factor in Facebook's immediate willingness to work with Foxtel; if so, it suggests that expanding "safe harbors" to service providers who have a financial incentive to turn an blind eye to piracy is not a good idea. 

It further demonstrates that platforms and rights holders can collaborate to stop copyright infringement without harming the ordinary activity or value of the online platform.

Because Facebook is a platform that hosts the user accounts of real people - and because we want to interact as ourselves with friends, colleagues, and family on the site - it seems to me that the possibility of account termination would carry considerable weight. In short, streaming a live PPV event just wouldn't be worth it. 

I don't know if there will be a rematch between Anthony Mundine and Danny Green, but I doubt we'll see many repeat performances like those by Hevers and Sharpe. Whether they know it or not, they got lucky; and I would be surprised if Foxtel or any other broadcaster would take the same approach next time. If you're into sharing a PPV sporting event with friends, invite them over and split the cost. It's totally legal and probably more fun.

David Newhoff is a writer and artists' rights advocate living in New York. He writes about digital-age and copyright issues on his blog The Illusion of More.

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