Streaming Is the Name of the Game: Why Sports Leagues Should Adapt to Consumers and Follow Ad Dollars Towards Live Streaming

Volume 26 Issue 2 Article 3

6-1-2019

Streaming Is the Name of the Game: Why Sports Leagues Should Streaming Is the Name of the Game: Why Sports Leagues Should

Adapt to Consumers and Follow Ad Dollars Towards Live Adapt to Consumers and Follow Ad Dollars Towards Live

Streaming Streaming

Gregory Bailey

Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj

Part of the Communications Law Commons, and the Entertainment, Arts, and Sports Law Commons

Recommended Citation Recommended Citation

Gregory Bailey,

Streaming Is the Name of the Game: Why Sports Leagues Should Adapt to Consumers

and Follow Ad Dollars Towards Live Streaming

, 26 Jeffrey S. Moorad Sports L.J. 323 (2019).

Available at: https://digitalcommons.law.villanova.edu/mslj/vol26/iss2/3

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Comments

STREAMING IS THE NAME OF THE GAME: WHY SPORTS

LEAGUES SHOULD ADAPT TO CONSUMERS AND FOLLOW

AD DOLLARS TOWARDS LIVE STREAMING

I. C

OMBATING

ONSUMERS

ITHIN

TREAMING

LATFORMS

: A

NTRODUCTION TO

PORTS

ROADCASTING AND

IVE

TREAMING

Live streaming is changing the way sporting events are broad-

casted, advertised, and viewed by consumers.

The popularity of

live streaming stems from the growth of the internet and the emer-

gence of Google, YouTube, and Facebook as the most trafficked

websites.

These websites are part of peoples’ daily lives and pro-

1. See generally Josh Mathews, Sports Broadcasting Blackouts: A Harbinger of

Change in Rapidly Evolving Media Landscape, 18

OUS

. B

. & T

L.J.

202 (2018)

(addressing evolving media landscape within scope of sports); see also Juan Pablo

Manterola, Online Streaming Is the Future of Sports Broadcasting: It’s Not ‘If’ You’ll Cut

Cable, but ‘When’,

ORBES

(Apr. 14, 2017, 9:00 AM), https://www.forbes.com/sites/

forbesagencycouncil/2017/04/14/online-streaming-is-the-future-of-sports-broad-

casting-its-not-if-youll-cut-cable-but-when/#5675d5533bbc [https://perma.cc/

2RUV-8939] (noting decline in cable company subscriptions and suggesting sports

broadcasting needs to be more like movies: go directly to consumers); Derek

Thompson, TV’s Ad Apocalypse is Getting Closer,

TLANTIC

(Aug. 10, 2017),

https://www.theatlantic.com/business/archive/2017/ 08/tvs-ad-apocalypse-is-

coming/536394/ [https://perma.cc/2X7C-V2EW] (questioning where forty billion

dollars a year of advertising would go in ad-free streaming service) (emphasis ad-

ded); cf. Sara Fischer, TV Advertising Projections Reduced Due to Increased Cord-Cutting,

XIOS

(Sept. 13, 2017), https://www.axios.com/tv-advertising-projections-reduced

-due-to-increased-cord-cutting-1513305461-b103f7af-1019-4437-88d8-3d15caf2

a8dc.html [https://perma.cc/59XP-XRPN] (reporting decrease of one billion dol-

lars for TV advertising due to cord-cutting). For further discussion on how live

streaming is changing the way sports are broadcasted, see infra notes 16–52 and

accompanying text.

2. See Andrew Marantz, Reddit and the Struggle to Detoxify the Internet,

ORKER

(Mar. 19, 2018), https://www.newyorker.com/magazine/2018/03/19/

reddit-and-the-struggle-to-detoxify-the-internet [https://perma.cc/5MGE-UQQK]

(listing Reddit, one commonly used source for pirating and streaming content, as

website with fourth most traffic); see also Jeff Desjardins, These Are the Top 100 Web-

sites of the Internet, According to Web Traffic,

. I

NSIDER

(Mar. 7, 2017, 8:08 PM),

https://www.businessinsider.com/top-100-websites-web-traffic-2017-3 [https://

perma.cc/LW5N-5TLV] (identifying Google, YouTube, and Facebook as top three

most trafficked websites, followed by Amazon as fourth, Reddit as seventh, and

Yahoo and Twitter, other websites providing streaming content, as fifth and ninth,

respectively); cf. Jerri Collins, The Top 10 Most Popular Sites of 2018,

IFEWIRE

https://www.lifewire.com/most-popular-sites-3483140 [https://perma.cc/LW5N-

5TLV] (last updated Jan. 2, 2019) (identifying Google, YouTube, and Facebook as

(323)

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vide access to live stream content such as sporting events, television

shows, daily news, and friends’ activities.

As a result, streaming ser-

vices are now vital to consumers.

Consider the seventieth Prime-

time Emmy Awards, which aired in September 2018, as an

example.

The Primetime Emmy Awards ironically drew its smallest

viewership audience in the last decade, even though more shows

were awarded from streaming services like Netflix, Amazon, and

Hulu than ever before.

The rise of streaming services and the use of streaming tech-

nology by social media websites like Facebook and Twitter have al-

tered the methods advertisers use to reach consumers and the way

consumers choose content to watch.

Live streaming technology

top three most trafficked websites, but Yahoo as eighth and Amazon as tenth most

visited websites).

3. See Scott Kleinberg, Live Streaming: The Next Big Thing in Social Media,

RIB

(Apr. 1, 2015), http://www.chicagotribune.com/lifestyles/ct-so-social-live

streaming-meerkat-periscope-20150401-column.html [https://perma.cc/QUK6-

NFZE?type=image] (looking specifically at Twitter for example and defining live

streaming as broadcasting in real time); see also Karl Kaufman, Will Facebook Become

the Preferred Way for Fans to Watch Sports?,

ORBES

(June 15, 2018, 12:50 PM), https:/

/www.forbes.com/sites/karlkaufman/2018/06/15/will-facebook-become-the-pre-

ferred-way-for-fans-to-watch-sports/#9eb833a2746f [https://perma.cc/8ZNN-

NMVJ] (reporting how “live videos on Facebook generate six times more discus-

sion than recorded videos”) (internal quotation marks omitted).

4. See generally Mathews, supra note 1 (addressing consumer reliance on

streaming for sports); Sara Fischer, The Battle for the Future of TV,

XIOS

(Oct. 11,

2018), https://www.axios.com/digital-video-wars-heat-up-4ccda248-c8c8-4d2c-9acf-

ebef67607870.html [https://perma.cc/V9FX-W9UZ] (“The race to own the future

of TV is intensifying, with mobile and streaming video companies looking to build

or expand video services that will launch by next year.”).

5. See Liane Starr, Netflix and HBO Set the Pace at 70th Primetime Emmys Telecast,

with Amazon and FX Close Behind,

ELEVISION

CAD

(Sept. 17, 2018), https://

www.emmys.com/news/awards-news/70th-emmy-winners [https://perma.cc/

A84L-WLRM] (reporting on results of Emmy Awards from September 2018).

6. See Stephen Battaglio, Emmy Awards’ TV Audience Hits New Low with 10.2

Million Viewers,

L.A. T

IMES

(Sept. 18, 2018, 3:10 PM), http://www.latimes.com/

business/hollywood/la-fi-ct-emmy-ratings-20180918-story.html [https://perma.cc/

U73B-5937] (“The Emmy Awards telecast is not the only trophy show to see

smaller audiences, as a growing number of viewers prefer to watch clips of the programs

online rather than sit through a three-hour telecast with commercials.”) (emphasis

added).

7. See Fischer, supra note 4 (examining expansion of streaming video compa-

nies, such as Netflix and Amazon which have each totaled more than one hundred

million subscribers, and noting no TV networks are “looking to own the future of

television”); see also Ben Popper, The Great Unbundling: Cable TV as We Know It is

Dying,

ERGE

(Apr. 22, 2015, 10:34 AM), https://www.theverge.com/2015/4/

22/8466845/cable-tv-unbundling-verizon-espn-apple [https://perma.cc/BMS2-

MW2Y] (indicating main goal of broadcasting is advertisements); Thompson, supra

note 1 (suggesting consumers prefer streaming to cable, as “each ad-free streaming

product is yet another reason to dump the ad-rich cable bundle”). See generally

Kaufman, supra note 3 (discussing Facebook’s use of streaming for personal pur-

poses and sports); see also Cori Faklaris et al., Legal and Ethical Implications of Mobile

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has had a particularly strong impact on professional sports leagues.

Within the last several years, live streaming technology has led to a

difficult decision for sports leagues to confront.

Leagues must de-

termine whether to keep sporting coverage in-house and provide

easy access for consumers to stream content and watch events, or

keep the coverage on major broadcasting networks like they have

traditionally done.

This Comment argues leagues should decide to stream their

content, because if they do, there is no shortage of potential buyers

for the streaming rights.

Facebook and Twitter are two examples

of eager buyers acting as non-traditional broadcast companies

jumping at the opportunity to stream sporting events.

Over the

last several years, Facebook first agreed to stream one Major League

Baseball (“MLB”) game per week for one season, and then agreed

to exclusively stream twenty-five games the following season.

Twit-

Live-Streaming Video Apps,

’

N FOR

OMPUTING

ACHINERY

. L

IBRARY

, In Proc.

of the 18th Int’l Conf. on Human-Computer Interaction with Mobile Devices and

Services Adjunct (2016), https://doi.org/10.1145/2957265.2961845 [https://

perma.cc/E7XY-GPNT] (describing live streaming video’s surge in society and

Facebook’s live technology platform). “A Cisco White Paper estimates that by

2017, video will account for 30% of all internet traffic and 70% of mobile traffic.” Id.

(emphasis added) (implying surge of mobile traffic to increased consumer use of

streaming).

8. See, e.g., At the Gate and Beyond,

C S

PORTS

UTLOOK

, at 10–13 (Oct. 2018),

available at www.pwc.com/us/sports [https://perma.cc/PKL3-R7RB] (hereinafter

“

C S

PORTS

UTLOOK

”)

(predicting streaming rise will continue in professional

sports); see also Kaufman, supra note 3 (reporting on streaming deals between in-

ternet service providers and sports leagues).

9. See Manterola, supra note 1 (discussing challenges presented to sports

leagues by rise of streaming).

10. See id. (suggesting individual sports teams could “bypass traditional broad-

casting” but it is unclear whether major sports leagues’ see streaming “as a profita-

ble alternative to cable or paid streaming TV”).

11. See Lara O’Reilly, Streaming Sports Service DAZN Aims to Introduce Ad Model

Without All the Repetition,

ALL

. J.

(Nov. 23, 2018, 9:29 PM), https://

www.wsj.com/articles/streaming-sports-service-dazn-aims-to-introduce-ad-model-

without-all-the-repetition-1542998439 [https://perma.cc/36VR-MTNY] (“Live

sports continue to deliver large audiences to TV networks otherwise suffering

steady ratings erosion. They also give viewers a heavy dose of what’s called ‘ad

frequency.’”); Elizabeth Winkler, The Real Streaming Race Starts . . . Now,

ALL

. J.

(Feb. 1, 2019, 5:30 AM), https://www.wsj.com/articles/let-the-streaming-wars-be-

gin-11549017001?ns=prod/accounts-wsj [https://perma.cc/NRN4-CFPL] (“Peo-

ple already have multiple streaming subscriptions. Eventually it may be the norm

to pay for a bundle of platforms.”).

12. See, e.g., Manterola, supra note 1 (reporting on Facebook’s interest in live

streaming); Kaufman, supra note 3 (comparing Facebook’s and Twitter’s stream-

ing ambitions).

13. See Kaufman, supra note 3 (“Facebook overhauled its platform to en-

courage more interactive and engaging content, and video is at the forefront of

that change.”) (emphasis added).

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ter paid the National Football League (“NFL”) ten million dollars

for the rights to air Thursday Night Football games in 2016, and

Amazon later purchased those rights for fifty million dollars.

Am-

azon also bought the rights to live stream twenty English Premier

League soccer games for 2019, and in 2018 YouTube bought the

rights to air Major League Soccer games for Los Angeles’ new

team.

Even though some leagues have signed contracts to provide

streaming services, those same leagues, and others, are hesitant to

embrace streaming because of the threat of potential infringement

of their intellectual property rights.

Sports broadcasters are also

wary of live streaming because they fear live streaming websites and

apps “will cannibalize viewers.”

Sports leagues are cautious be-

cause they derive most of their revenue from ticket sales and the

sale of broadcasting rights.

Broadcasting live sporting events is a

huge revenue opportunity for sports leagues and broadcasters.

14. See id. (noting content is available to paying Amazon Prime members and

for free through Amazon’s Twitch service).

15. See Ivana Kottasova, Soccer Binge! Amazon Will Show 20 Premier League

Matches in UK,

CNN

(June 7, 2018, 8:27 AM), https://money.cnn.com/2018/06/

07/media/amazon-premier-league-rights/index.html [https://perma.cc/69YB-

MYME] (reporting Amazon’s deal); see also Kaufman, supra, note 3 (discussing You-

Tube’s deal and pointing out YouTube is owned by Google). To clarify, YouTube

is a subsidiary of Alphabet Inc., and Alphabet Inc. was created by Google

“bl[owing] up its entire corporate structure to form a new parent company.” Av-

ery Hartmans & Greg Sandoval, The Company Formerly Known as Google is Far Bigger

than Most People Realize,

. I

NSIDER

(July 11, 2018, 5:13 PM), https://www.busi

nessinsider.com/alphabet-google-company-list-2017-4 [https://perma.cc/DG2K-

RYMX] (noting corporate restructuring was in 2015 and meant to ease its business

operations, including its ownership of YouTube, which was acquired in 2006, and

is number one video sharing website and number two most visited website). For

further discussion of YouTube, including the fact that it is the second most visited

website after Google, see supra note 2 and accompanying text.

16. See Marc Edelman, From Meerkat to Periscope, 39

OLUM

. J.L. & A

RTS

469,

472 (2016) (citing Christian Red, New Sports Fight: Video Streaming,

N.Y. D

AILY

EWS

at 47 (May 5, 2015)) (expressing fear of sports leagues). See generally Faklaris et al.,

supra note 7 (stating, in general, live streaming poses threat due to “numerous

legal and ethical concerns around privacy and information sharing, publicity and

intellectual property”).

17. See Edelman, supra note 16, at 472 (citing Don Kaplan & Christian Red,

Big $ucker Punch By Video Apps,

N.Y. D

AILY

EWS

, at 17 (May 5, 2015)) (providing

quote from TV Media Insights Editor-in-Chief Marc Berman in regards to stream-

ing apps).

18. See Faklaris et al., supra note 7 (“The increasing accessibility of video and

live streaming capability for individuals, as opposed to broadcast and cable televi-

sion networks, has long posed a threat to these revenue streams.”); see, e.g.,

PORTS

UTLOOK

, supra note 8, at 3–4 (highlighting media rights, gate revenues,

and sponsorship).

19. See

C S

PORTS

UTLOOK

, supra note 8, at 12 (discussing focus on stream-

ing as source to rely on for broadcasting).

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This is evident in the fact that the cost of viewing broadcasted sport-

ing events comprises approximately fifteen percent of a standard

cable bill.

The value of broadcasting rights also presents a legal

challenge for sports leagues and broadcasters.

Sports leagues and

broadcasters are “prime candidates for a legal battle over their in-

tellectual property rights and broadcast copyrights” against those

who rebroadcast content without permission, because leagues and

broadcasters want to ensure continued success of their businesses.

For example, the television network NBC paid billions of dollars for

the rights to broadcast the 2014 Olympics.

NBC expressed con-

cern it would suffer if websites and apps were able to stream events

from the Olympics without NBC’s consent.

Against this backdrop, it is evident that live streaming technol-

ogies are changing the way consumers watch sporting events.

Live

streaming has arguably been around since the 1990s, but it was too

difficult for most consumers to use until recently.

It is easy for

today’s consumers to enjoy live streams because smart phones are

more sophisticated and provide access to improved data networks

with faster computing abilities.

As a result of these technological

20. See Mathews, supra note 1, at 203 (noting sports broadcast is “dominant

revenue stream” for leagues and percent of cable bill).

21. See

C S

PORTS

UTLOOK

, supra note 8, at 13 (suggesting increased com-

petition across all “devices, channels and apps” could result in “significant rights

fee increase”).

22. Bryan Altman, Periscope, Meerkat Threaten Multi-Billion Dollar Sports Broadcast

Copyrights,

CBS L

OCAL

PORTS

(Apr. 2, 2015, 4:30 PM), http://newyork.cbslocal.

com/2015/04/02/periscope-meerkat-threaten-multi-billion-dollar-sports-broad-

castcopyrights/ [https://perma.cc/5V58-VK43] (discussing sport broadcasters op-

posing live streaming’s technological development).

23. See Edelman, supra note 16, at 472 (citing Kaplan & Red, supra note 17)

(reviewing potential issues from streaming).

24. See id. (cautioning forward looking ideas of live streaming abilities with

existing contracts in place).

25. See generally id. (discussing how evolving media landscape is forcing sports

industry to examine how best to broadcast events); see also Edelman, supra note 16,

at 470–72 (discussing intellectual property rights of live streaming sporting

events).

26. See Kleinberg, supra note 3 (noting ability to record on smartphones and

livestream via apps and internet service providers).

27. See Jeff Ward-Bailey, Live-Streaming Apps: Periscope Rises to Challenge Meerkat,

HRISTIAN

. M

ONITOR

, (Mar. 26, 2015), http://www.csmonitor.com/Technol-

ogy/2015/0326/Livestreaming-apps-Periscope-rises-to-challenge-Meerkat [https:/

/perma.cc/QVT7-WWD4] (noting rise in popularity and powerful smartphones);

see also Ed Baig, Periscope Streams Challenge Meerkat,

USA T

ODAY

(Mar. 26, 2015, 5:10

PM), https://www.usatoday.com/story/tech/columnist/baig/2015/03/26/twitter

-periscope-poses-livestreaming-challenge-to-meerkat/70469808/ [https://

perma.cc/937X-YW94] (“Only now with faster and more robust networks, power-

ful smartphones in the hands of many, and, of course, the presence of social net-

works, [live streaming] is finally gaining meaningful traction.”).

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advancements, a larger audience is interested in live streaming con-

tent, specifically sporting events.

This increased ease of access

presents a lucrative opportunity for the sports industry; it could sat-

isfy consumer demand by offering live streams of games.

How-

ever, the industry is wary of live streaming and has expressed

concern because the value of broadcasted events is “inherent to

their timeliness.”

The timeliness has to do with the fact that a live

sporting event is only important when live, otherwise consumers are

only interested in the result or outcome of the event as opposed to

watching it in real time.

Although a live stream is as timely as a

live broadcast, leagues’ concerns focus on preventing illegal stream-

ing.

If an event is illegally streamed or broadcasted, the result of

the event will already be known, the illegal streamer will already

have benefited from watching, and the leagues will have suffered

from fewer viewers.

This Comment argues leagues should not be

wary, because they can use copyright law to fight parties who live

stream content without permission.

rized live streaming infringes and impairs the marketability and

profitability of the broadcasted coverage.

Leagues already use

28. See Baig, supra note 27 (noting “meaningful traction” resulting in larger

audiences). Consumers have also become more accustomed to watching videos on

small screens and different types of platforms. See Tali Arbel, Boxing Match Pops up

on Phones as TV Habits Change,

ONOLULU

TAR

-A

DVERTISER

(May 5, 2015) (describ-

ing transition from televisions to handheld devices).

29. See

C S

PORTS

UTLOOK

, supra note 8, at 9–10 (suggesting social media

presents “24/7/365 opportunity to connect” and allows people to control content

consumed).

30. See Samuel Gibbs et. al., What Do Periscope and Meerkat Mean for Broadcasting

UARDIAN

(May 11, 2015, 6:06 AM), http://www.theguardian

.com/technology/2015/may/11/periscope-meerkat-broadcast-copyright-premier-

league [https://perma.cc/VK9L-X7ZK] (noting several professional sports leagues

have voiced caution against live streaming apps).

31. See id. (discussing importance of timeliness of games to securing viewers);

c.f. with infra notes 113–116 and accompanying text (examining results and ac-

counts of sporting events).

32. For further discussion of an example regarding live streaming and live

broadcasting an event, see infra notes 207–218 and accompanying text.

33. See e.g., Edelman, supra note 16, at 475 (noting loss to leagues).

34. See id., at 475 n.31 (citing to Compl. at ¶ 38, Showtime Networks, Inc. v.

John Doe (No. 2:15-CV-03147), 2015 WL 1910767 (C.D. Cal. Apr. 28, 2015)) (dis-

cussing case involving unlicensed live streaming of boxing match between Floyd

Mayweather, Jr. and Manny Pacquiao).

35. See id. (discussing Showtime Networks and how event lost value when others

infringed on event’s copyrights).

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of sporting events.

For example, an event ticket often includes

warnings with restrictive language on the back, and broadcasts

often include similar statements about restrictions on rebroad-

casting the content without the consent of the particular league.

A licensed broadcaster’s biggest concern is that an unlicensed party

will rebroadcast a sporting event involving “live coverage of a one-

time live sporting event whose outcome is unknown.”

This Comment argues that even though leagues fear streaming

and seek to preserve their revenue, they should still embrace live

streaming platforms.

If leagues live stream their sporting events,

they can engage with a rapidly developing audience through both

social media and simply by providing easy access to content, similar

to what many other television networks have done.

Historically,

sports broadcasters provided content of any “noteworthy” event,

and sports leagues focused on “produc[ing] sports.”

But this

model has changed.

For example, the NFL organizes its opera-

tions and media together in order to produce coverage of its own

content.

The NFL is able to do this by implementing its intellec-

36. For further discussion of leagues’ uses of copyright law, see infra notes

37–32, 106–142 and accompanying text.

37. See, e.g., Pittsburgh Athletic Co. v. KQV Broad. Co., 24 F. Supp. 490, 492

(W.D. Pa. 1938) (noting language prohibiting ticket holders from sharing informa-

tion during games themselves); see also Edelman, supra note 16, at 491 (citing Red,

supra note 16) (discussing language from NFL prohibiting retransmission).

38. Edelman, supra note 16, at 476 n.34 (quoting Compl. at ¶ 38, supra note

34).

39. See Faklaris et al., supra note 7 (noting sports leagues have power under

laws and financial motivation to block live streaming, but also have incentive to

embrace change to cater towards consumers).

40. See Sara Fischer, ESPN+ is up to a Million Paid Subscribers,

XIOS

(Sept. 20,

2018), https://www.axios.com/espn-subscribers-one-million-streaming-network-

f518c532-1f38-42ff-904c-8eb990db962a.html [https://perma.cc/6NMM-HHS9]

(examining success of ESPN’s new “direct-to-consumer streaming service called

ESPN+,” suggesting future success for Disney, parent company of ESPN, which

plans to launch streaming platforms in 2019); see also Fischer, supra note 4 (report-

ing on keeping content in-house such as Disney and AT&T’s plans to “launch new

direct-to-consumer streaming service[s]”). Before the streaming frenzy existed,

Disney “[f]ocus[ed] on making great content and then sell[ing] it to distribution

companies, like Comcast and DirecTV. This worked brilliantly when practically

the entire country subscribed to the same television product.” Thompson, supra

note 1 (discussing traditional cable bundles’ success, but also that current stream-

ing content without advertisements gives consumers reason to abandon traditional

cable bundles, leading Disney to remove its content from Netflix).

41. See Eric E. Johnson, The NFL, Intellectual Property, and the Conquest of Sports

Media, 86

N.D. L. R

. 759, 760 (2010) (examining how leagues “traditionally”

operated).

42. See id. at 760–61 (“It was up to others—the sports media—to produce

coverage on anything noteworthy that came out of the [sporting event].”).

43. See id. (pointing towards NFL as leading example of distributing informa-

tion which other leagues are likely to follow as “the blueprint”). The NFL is a

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tual property rights and keeping the content for itself to dis-

tribute.

Some entertainment companies, like Disney and Netflix,

keep their content “in-house” to maintain control over the content,

and sports leagues are questioning whether they should take the

same approach.

After establishing a strong fan base, Netflix was able create its

own content and maintain distribution control.

Other networks

are following suit and have begun to maintain ownership of their

content, providing access through their own in-house platforms.

In response to the increase in the markets’ use of streaming, other

networks, websites, and apps, such as Facebook, Amazon, Twitter,

and Yahoo, have joined the streaming revolution with an eye to-

wards live streaming sporting events.

Ultimately, this is further

proof of the demand for live streams of sporting events and the

prime example as it models itself as the “world’s leading sports business, media

and entertainment company.” Id. (quoting NFL’s 2011 internship and entry level

programs information). Further, the NFL “controls America’s favorite sport with a

business model that is the envy of all other professional sports leagues.” Id. (cita-

tion omitted) (internal quotation marks omitted) (suggesting NFL’s view of itself

goes further than outsiders’ opinions).

44. See id. (discussing how NFL keeps “not only traditional broadcasting game

coverage” for itself, but also “all elements used by journalists to report on sports,”

such as audio and video coverage, and in game updates).

45. See Sara Fischer, AT&T to Launch a Netflix Competitor Late 2019,

XIOS

(Oct. 10, 2018), https://www.axios.com/att-launch-new-streaming-service-in-late-

2019-06574ea7-5ed6-4b38-9323-f7cf9ea7bd34.html [https://perma.cc/R8KW-

LQJ2] (explaining new plans for “direct to consumer” streaming); see also Fischer,

supra note 4 (stating “Netflix and Amazon currently lead the pack,” but pointing

out AT&T and Disney’s plans to provide streaming content in near future); Karl

Bode, The Rise of Netflix Competitors Has Pushed Consumers Back Toward Piracy,

OTHERBOARD

(Oct. 2, 2018, 2:21 PM), https://motherboard.vice.com/en_us/ar-

ticle/d3q45v/bittorrent-usage-increases-netflix-streaming-sites?utm_source=reddit.

com [https://perma.cc/JP8M-RFBY] (discussing Disney’s decision to remove its

content from Netflix and begin its own streaming service). “Studies have shown

that nearly every major broadcaster will have launched their own streaming service

by 2022. And these companies are increasingly choosing to keep their own content as

in-house exclusives in order to drive subscriptions.” Id. (emphasis added) (sug-

gesting moving content in-house makes sense to drive up subscribers when content

is better and exclusive). For further discussion of sports leagues’ decision on

streaming content, see infra notes 187–285.

46. See Fischer, supra note 4 (examining Netflix’s subscription video service).

For further discussion of Netflix, see supra notes 7–10, 40, and 45 and accompany-

ing text.

47. See, e.g., Fischer, supra note 40 (reporting on Disney’s interest in control-

ling its platform, including its subsidiary ESPN+). For further discussion of other

similar streaming platforms, see supra notes 7–10, 40, and 45 and accompanying

text.

48. For further discussion of these non-traditional broadcasting companies’

opportunities, see supra notes 13–15, infra notes 199–201, 240–243 and accompa-

nying text.

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wide audience sports leagues could reach if they allowed these sites

to stream their content.

Prior to discussing how live streaming is changing the con-

sumption of sporting events, it is necessary to discuss the history of

sports broadcasting and how leagues have handled broadcasting is-

sues in the past.

This Comment addresses the history to predict

how leagues will likely react to current live streaming disputes and

how leagues should react to such disputes.

The history of sports

broadcasting shows how coverage of sporting events has developed

to where it is now and conclusively suggests the direction it may

continue to move towards—a direction focusing on the consumers

and easy access to content.

Section II of this Comment provides

background on the development of live streaming.

Section II also

examines major intellectual property legislation through the Sports

Broadcasting Act and copyright law.

Section III of this Comment

analyzes the most significant trends in live streaming, including

how consumers are protected under specific policies.

Section III

also looks at boxing which has embraced streaming to air content

as well as lessons from the sport’s past issues.

Ultimately, Section

IV of this Comment argues that leagues should embrace live

streaming because it helps them engage directly with consumers via

internet providers, mobile devices, apps, and easy access to

content.

49. See

C S

PORTS

UTLOOK

, supra note 8, at 12 (reporting next generation

of consumer demands focuses on “tech giants”).

50. For further discussion of the development of sports broadcasting, see infra

notes 58–105 and accompanying text.

51. For further discussion of changes in coverage of sporting events and the

development of sports broadcasting, see supra notes 10–45 and infra notes 58–155

and accompanying text.

52. For further discussion of sports broadcasting development, see infra notes

58–79 and accompanying text.

53. For further discussion of the background of streaming, see infra notes

58–79 and accompanying text.

54. For further discussion of sports broadcasting law and other legislation

protecting such content, see infra notes 80–157 and accompanying text.

55. For further discussion of trends in live streaming and consumers’ protec-

tion, see infra notes 160–198 and accompanying text.

56. For further discussion of sports broadcasting trends, see infra notes

160–286 and accompanying text.

57. For further discussion of how leagues should react, see infra notes

287–300 and accompanying text.

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II. B

ACKGROUND

: E

XPLAINING

EAGUES

’ H

ESITANCIES TO

HANGE

HROUGH

NTITRUST

AWS

, C

OPYRIGHT

IMITATIONS

AND

NTELLECTUAL

ROPERTY

IGHTS

To understand how streaming has developed in the sports in-

dustry, it is helpful to explore prior protective actions leagues have

taken to control the availability of their content on different net-

works.

Sports coverage has existed throughout modern history.

Technological developments, including the introductions of the ra-

dio and television, have boosted consumer and advertiser interests

in sports.

In the late twentieth century, technological innovations

prompted changes in legislation and caselaw, pushing broadcasting

towards its current form.

As a result of these technological ad-

vancements, broadcast networks are willing to pay increasing

amounts to claim the exclusive rights to air sporting events, thereby

boosting leagues’ revenue.

For example, the NFL entered into

agreements with CBS, Fox, NBC, and ESPN from 2014 to 2022 for

nearly forty billion dollars.

The National Basketball Association

(“NBA”) agreed to contracts with ESPN and TNT from 2016 to

58. See generally Edelman, supra note 16, at 470–77 (addressing history of live

streaming technology); see also Mathews, supra note 1, at 203–209 (discussing his-

tory of sports broadcasting rights).

59. See Corey Nachman & Dashiell Bennett, 14 Innovations That Changed Sports

Broadcasting Forever,

. I

NSIDER

(Apr. 17. 2011, 4:26 PM), https://

www.businessinsider.com/evolution-how-we-watch-sports-2011-4 [https://

perma.cc/6E38-Z7FW] (describing history of sports coverage beginning with wide-

spread radio broadcasts in 1920s, baseball coming to television in 1939, and sports

programming in color in 1955).

60. See Jeremy M. Evans, We Have Come Full Circle: Where Sports Franchises Derive

Their Revenue, 33

. & S

PORTS

12 (2017) (discussing broadcasting revenue

for sports and noting television was invented in 1920s but larger television con-

tracts began in 2000s). For further discussion of advertisers’ interests, see supra

note 7 and accompanying text.

61. For further discussion of historical advancement in technology and sports

broadcasting, see supra notes 58–60 and accompanying text.

62. See Evans, supra note 60, at 12–13 (reviewing revenue sources from broad-

casting deals).

63. See Nitin Bhandari, Top 10 Largest Sports League TV Contracts Ever,

ICHEST

(Nov. 23, 2013), https://www.therichest.com/sports/the-largest-sports-

league-tv-contracts-ever/ [https://perma.cc/A2CY-XJPV] (noting for 2014, Fox’s

NFL contract worth $1.1 billion per year, CBS’s NFL contract worth $1 billion per

year, and NBC’s NFL contract worth $950 million per year); cf. Top 10 Biggest TV

Rights Deals in Sports,

OTAL

PORTEK

(Jan. 19, 2017), https://

www.totalsportek.com/money/biggest-tv-deals-sports/ [https://perma.cc/M732-

6DY9] (depicting total worth of NFL’s broadcasting deals as $39.6 billion). Nota-

bly, the NFL’s largest contract appears to be ESPN’s deal to air Monday Night

Football, which is worth $1.9 billion per year. See Bhandari, supra note 63 (point-

ing out largest sports broadcasting contract).

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2025 for twenty-four billion dollars.

The MLB signed a deal with

Fox, TBS, and ESPN from 2014 to 2022 for just over twelve billion

dollars.

The revenue from these contracts is split among the

franchises in each league.

These contracts also depict the larger

deals within the respective sports leagues, which do not include the

many regional and local television station contracts that also broad-

cast games.

The revenue generated from broadcasting deals is ex-

pected to increase as “internet television outlets” like Netflix,

YouTube, and even Twitter and Facebook, begin to broadcast sport-

ing events.

Streaming live sports through different mediums

presents an opportunity to reach more viewers, which is important

for advertisers.

In 2015, the NFL took advantage of this opportu-

nity when it streamed its first game accessible solely through the

internet on Yahoo.

64. See Bhandari, supra note 63 (noting Disney, parent company of ESPN and

ABC, deal with NBA for $485 million per year, and TNT’s deal with NBA for $445

million per year); cf.

OTAL

PORTEK

supra note 63 (stating NBA’s total broadcast-

ing deal worth $24 billion).

65. See Bhandari, supra note 63 (providing Fox’s deal with MLB for $500 mil-

lion per year); cf.

OTAL

PORTEK

supra note 63 (stating MLB’s total broadcasting

deals with Fox, TBS, and ESPN amount to $12.4 billion).

66. See Evans, supra note 60 (highlighting interest each franchise has in such

contracts). Compare the amounts of these contracts with the fact the NFL gener-

ates about $14 billion per year. See Daniel Kaplan, NFL Revenue Reaches $14B, Fueled

By Media,

PORTS

. J.

(Mar. 6, 2017), https://www.sportsbusinessdaily.com/

Journal/Issues/2017/03/06/Leagues-and-Governing-Bodies/NFL-revenue.aspx

[https://perma.cc/76FH-QP89] (reporting $900 million increase compared to

2016 mostly due to media presence); see also Stephen J. Dubner, How Sports Became

Us,

REAKONOMICS

ADIO

(Sept. 12, 2018), available at http://freakonomics.com/

podcast/sports-ep-1/ [https://perma.cc/S7DS-DJFL] (discussing NFL’s revenue

with Victor Matheson, who states NFL generates $14 to $15 billion per year).

67. See Evans, supra note 60 (detailing one MLB team, Los Angeles Dodgers,

has $8.3 billion contract to air games over twenty-five-year period with Time

Warner Cable). Regional and local broadcast coverage is successful because “re-

gional sports networks are money-printing operations that heavily promote the

teams they carry and play on the loyalties and wallets of local fans.” Richard

Sandomir, Regional Sports Networks Show the Money,

N.Y. T

IMES

(Aug. 19, 2011),

https://www.nytimes.com/2011/08/20/sports/regional-sports-networks-show-

teams-the-money.html [https://perma.cc/R4CW-ARWQ] (indicating large pres-

ence of local television station contracts).

68. See Evans, supra note 60 (stating “revenues will likely only grow” as stream-

ing services get involved). As more consumers prefer to watch sporting events live,

and streaming is becoming more accessible, “live sports telecast has become in-

creasingly valuable real estate for advertisers desperate for eyeballs.” Kaufman,

supra note 3 (noting absence of commercial-free options).

69. See

C S

PORTS

UTLOOK

, supra note 8, at 11 (discussing NFL’s streaming

partnership with Amazon as “giv[ing] TV providers an opportunity to generate

incremental advertising dollars through these partnerships”).

70. For further discussion of the NFL’s first streamed game, see infra note 244

and accompanying text.

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The Sports Broadcasting Act of 1961 (“SBA”) is the best place

to start in an examination of the advancements in streaming

sports.

Sports broadcasting law has been fairly unchanged since

Congress enacted the SBA because it provides immunity for leagues

from federal antitrust broadcasting regulations.

In recent years,

leagues have faced suits regarding broadcast agreements focusing

on blackout restrictions, or actions banning events from airing in

particular markets due to league broadcasting contracts with local

markets.

Blackout restrictions have led some consumers to pirate or ille-

gally stream sporting events.

At the same time, sports leagues are

opening the door to streaming more content, given the leagues are

the ones providing the content.

Leagues should not be hesitant

to provide streaming content because the SBA gives them the up-

per hand in distributing and controlling content.

Further, the

71. See generally Sports Broadcasting Act of 1961, Pub. L. No. 87–331, 75 Stat.

732 (codified as amended at 15 U.S.C. §§ 1291–1295 (2006)). For further discus-

sion of the importance of the SBA, advancements in sports broadcasting, and how

it developed, see infra notes 80–105 and accompanying text.

72. See Mathews, supra note 1, at 203 (focusing on four major American pro-

fessional sports leagues: football, hockey, basketball, and baseball).

73. See id. (noting league’s “agreements were alleged to be in violation of fed-

eral antitrust laws” as restrictions limited viewers and increased price); see generally

Laumann v. Nat’l Hockey League, 907 F. Supp. 2d 465 (S.D.N.Y. 2012) (reviewing

blackout restriction case for NHL, holding plaintiffs adequately alleged participa-

tion of conspiracy to geographically divide market, but failed to state claim for

conspiracy to monopolize market for video presentation and internet streaming of

games); Garber v. Office of the Comm’r of Baseball, 120 F. Supp. 3d 334 (S.D.N.Y.

2014) (reviewing blackout restriction case for MLB); Trilogy Holding v. Nat’l Foot-

ball League, Inc., 2:15CV10000 (S.D.N.Y. 2015) (reviewing blackout restriction

case for NFL); William F. Saldutti IV, Blocking Home: Major League Baseball Settles

Blackout Restriction Case; However, a Collision with Antitrust Laws is Still Inevitable, 24

EFFREY

S. M

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L.J

. 49 (2017) (examining blackout restrictions in

MLB).

74. See generally Erik Malinowski, WTF MLB? Baseball Strikes Out with its Stream-

ing Policies,

OLLING

TONE

(Jun. 5, 2015), http://www.rollingstone.com/ sports/

features/wtf-mlb-baseball-strikes-out-with-its-streaming-policies-20150605 [https://

perma.cc/8HJH-R3LS] (discussing use of proxy websites to mask where content is

viewed); Bode, supra note 45 (reviewing why consumers pirate content in general,

because, “an increase in exclusivity deals [ ] force subscribers to hunt and peck

among a myriad of streaming services to actually find the content they’re looking

for”).

75. See generally Mathews, supra note 1 (reviewing streaming in sports); see also

Stephen W. Dittmore & Brett Hutchins, Privilege Over Innovation: Sports Broadcast-

ing, Mobile Television, and the Case of Aereo, 27

J. L

EGAL

SPECTS

PORT

3 (2017)

(examining abilities of streaming apps to share sports leagues’ content). For fur-

ther discussion of significance of maintaining distribution of content, see supra

notes 40–47 and accompanying text.

76. See Dittmore & Hutchins, supra note 75, at 6–8 (analyzing streaming apps

under Copyright Act of 1976 and who has control of streamed content).

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bolster the protection leagues receive from the SBA.

Leagues

have struggled with how to best approach issues of streaming given

their legal abilities to restrict consumers’ access to content com-

pared to the increase in availability to stream content and consum-

ers’ demands.

The major debate underlying changes in sports

broadcasting is the antitrust law which seeks to “prevent monopo-

lies,” versus the intellectual property and copyright laws which seek

to “enshrine” monopolies.

A. Sports Broadcasting Act: Package and Monopolize

The SBA created the cable television bundle currently domi-

nating broadcasts of professional sports.

The SBA was enacted in

response to contract disputes between the NFL, the American Foot-

ball League (“AFL”), and separate broadcasting stations.

Specifi-

cally, the SBA was formed in response to two lawsuits against the

NFL in which the respective courts held the sale of packaged tele-

vised games to CBS violated Section 1 of the Sherman Antitrust

Act.

1. The 1953 and 1961 Cases

In United States v. National Football League,

the first lawsuit in

1953 (hereinafter “the 1953 case”), a dispute arose over the NFL’s

77. See id. (discussing Copyright Act of 1976). For further discussion of

streaming services’ abilities under the Digital Millennium Copyright Act, see infra

notes 148–149 and accompanying text.

78. For further discussion of the leagues’ dilemma with approaching stream-

ing, see supra notes 16–45 and accompanying text.

79. See Johnson, supra note 41, at 761–62 (noting surprise sports leagues took

so long to embrace intellectual property rights, because “it has always been a fore-

gone conclusion that, as a business, sports would run headlong into antitrust is-

sues”). Sports leagues are now more focused on intellectual property law since it

provides a “sanctioned escape” from antitrust law. See id. (“The legal concepts of

antitrust and [intellectual property] are each other’s yin and yang.”).

80. See Dittmore & Hutchins, supra note 75, at 6 (referring to congressmen

reflecting on impact of SBA).

81. See

C S

PORTS

UTLOOK

, supra note 8, at 12 (“The AFL-NFL merger

wouldn’t have happened if the AFL had not secured a broadcast deal with NBC

. . . .”).

82. See generally Steven Perry, Home Run or Strikeout? The Unsettled Relationship

Between the Sports Broadcasting Act and Cable Programming, 25 No. 2

OMPETITION

: J.

NTI

., UCL & P

RIVACY

. S

. B. C

20, 21, available at https://www.mto.com/

Templates/media/files/Reprints/Steve%20Perry/

Home%20Run%20or%20Strikeout_Article_Fall%202016.pdf [https://perma.cc/

GYB9-QUA3] (referring to AFL and NFL dispute of packaged deals).

83. 116 F. Supp. 319 (E.D. Pa. 1953).

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newly proposed bylaws.

The issue revolved around what are now

known as “blackout restrictions.”

After the 1953 case, each NFL

team entered into agreements with networks for television rights.

Prior to the second case in 1961, the NFL entered into a contract

with CBS, and the AFL signed a five-year contract with ABC to air

all league games.

In 1961, in United States v. National Football

League,

the second suit of the same name (hereinafter “the 1961

case”), a district court ruled the NFL’s attempt to package broad-

casting rights to CBS violated Section 1 of the Sherman Antitrust

Act.

In the 1961 case, the NFL asked the district court from the

1953 case to allow the league’s proposed agreement with CBS, but

the court declined to do so.

The court held the NFL teams “elim-

inated competition among themselves in the sale of television

rights, in violation of a provision in the final judgment that barred

restrictions.”

2. Enactment of the SBA

A few months after the 1961 case, Congress enacted the SBA.

The SBA allows a sports league to control all copyrighted broadcast-

ing under the particular league’s name.

The purpose of the SBA

84. See generally id. at 327–39 (detailing new bylaws for broadcasting games);

see also Perry, supra note 82, at 21–23 (discussing 1953 case).

85. See Perry, supra note 82, at 23 n.20 (referring to how Congress’s “final

judgment [ ] allow[ed] restrictions on the telecasts of games in the home territory

of a team that was playing at home that day”).

86. See id. (discussing result of 1953 case).

87. See id. (noting AFL later merged with NFL).

88. 196 F. Supp. 445 (E.D. Pa. 1961).

89. See id. at 447 (reviewing NFL’s broadcasting plan with CBS).

90. See id. (addressing discrepancy between two leagues and what each league

was capable of).

91. Id. (internal quotation marks omitted) (quoting United States v. Nat’l

Football League, 196 F. Supp. 445, 447 (E.D. Pa. 1961)).

92. See generally United States v. Nat’l Football League, 196 F. Supp. 445 (pub-

lishing opinion on July 20, 1961); see also 15 U.S.C. §§ 1291–1295 (being originally

enacted on Sept. 30, 1961). Once the SBA was enacted, leagues were able to ob-

tain control over the distribution of their sporting events, and the individual

teams, clubs, and organizations “agreed not to compete in business matters related

to the video presentation of live major-league . . . games.” Laumann v. Nat’l

Hockey League, 907 F. Supp. 2d 465, 473 (S.D.N.Y. 2012) (quoting Compl. at ¶

5[7], Laumann, 907 F. Supp. 2d (No. 1:12-CV-01817), and Compl. at ¶ 8, Garber v.

Office of the Comm’r of Baseball, 120 F. Supp. 3d 334 (S.D.N.Y. 2014) (No. 1:12-

CV-0374)).

93. See Eric Gebert, The Long Arm of the National Football League: Is the NFL’s

B.C. IP & T

ECH

. F

ORUM

at 7 (2017), available at http://bciptf.org/wp-content/uploads/2017/02/Blog-

The-Long-Arm-of-the-National-Football-League-Gebert.pdf [https://perma.cc/

2MVF-J34Q] (citing Directorate for Financial and Enterprise Affairs, Roundtable on Com-

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is to avoid antitrust laws, and it accomplishes this by allowing teams

within sports leagues to combine their rights.

Combining

leagues’ rights results in telecasting games in a “package of pooled

rights to a television network or other purchaser without thereby

violating the antitrust laws.”

The sporting leagues then use their

market power through the antitrust exemption to package broad-

cast deals.

Notably, the AFL operated under this setup already,

yet the 1953 case prohibited the NFL from doing so, which eventu-

ally prompted the 1961 case.

3. Function of the SBA Today

Sports leagues urged Congress to enact the SBA because it

would allow “the leagues to stay financially solvent amid technologi-

cal innovation that permitted teams in larger markets to realize

more broadcasting revenue than teams in smaller media mar-

kets.”

Since its enactment, courts have held the SBA applies

strictly to free commercial television and not to contracts with paid-

for television.

“Free commercial television” includes networks

petition and Sports,

. T

RADE

OMM

’

1, 8. (June 8, 2010)); see also Johnson, supra

note 41, at 773 (noting antitrust exemption to sports leagues allows leagues to pool

broadcast rights as one package).

94. See 108 Cong. Rec. at 20059–60 (1961), available at https://

www.govinfo.gov/content/pkg/GPO-CRECB-1961-pt15/pdf/GPO-CRECB-1961-

pt15-4-2.pdf [https://perma.cc/F77L-HLPT] (discussing bill to amend antitrust

laws to allow leagues to enter into television contracts).

95. Id. at 20059 (quoting Rep. Cellar).

96. See Dittmore & Hutchins, supra note 75, at 4 (discussing leagues’ strong

market control).

97. See Perry, supra note 82, at 23 (reviewing NFL’s proposal to ask for judicial

permission to contract with CBS in 1961). In a discussion on Congress’s intent and

this issue in 1961, one representative was quoted as saying:

[T]he members of a professional sports league cannot lawfully act in con-

cert to assure member clubs with weak teams or limited home territory

television markets an adequate amount of television income and of televi-

sion coverage for games played away from home. Yet, should these

weaker teams be allowed to f[l]ounder, there is danger that the structure

of the entire league would become impaired and its continued existence

imperiled.

108 Cong. Rec. at 20060 (referring to Rep. Cellar’s discussion on how H.R. 9096 is

needed to supersede the 1953 and 1961 cases).

98. Dittmore & Hutchins supra note 75, at 11 (noting lobbyist attempts in

Congress).

99. See Perry, supra note 82, at 20–21, 28–30 (relying on Chicago Prof’l Sports

Ltd. P’ship v. Nat’l Basketball Ass’n, 95 F.3d 593 (7th Cir. 1996) and Shaw v. Dallas

Cowboys Football Club, Ltd., 172 F.3d 299 (3d Cir. 1999)). Specifically, the Shaw

case on remand interpreted that the Court of Appeals “did not address whether

broadcasting the games on the Internet or cable television was an exempt activity

under the SBA, but only found that satellite broadcasts of NFL games were not ex-

empted.” Schwartz v. Dallas Cowboys Football Club Ltd., 157 F. Supp. 2d 561, 577

(E.D. Pa. 2001) (first emphasis added) (discussing narrower approach contrary to

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like NBC and CBS, whereas paid-for television includes networks

like TNT and ESPN.

100

Sports leagues may decide “to move their

content to pay cable distributors,” but the leagues would lose their

exemption from antitrust laws under the SBA.

101

Even with all of the legislation surrounding the SBA, only a

small number of courts have examined whether sports broadcasting

agreements with a league are exempt from antitrust laws under the

SBA.

102

However, statutory interpretation does suggest the SBA ex-

emptions apply to basic programming specifically.

103

Currently,

due to antitrust exemptions, leagues are able to negotiate as a

whole rather than through individual teams and organizations.

104

Ultimately, the SBA highlights the old-school style of leagues re-

sisting change: package a deal and control the market.

105

B. Copyright Act of 1976: Protect and Collect

1. Enactment of the Copyright Act

While the SBA gave leagues the ability to negotiate deals, the

protection in the form of licensing for certain forms of media and

broad interpretation of current parties, and noting Charles Shaw’s dismissal as

class representative, replaced by Bret D. Schwartz).

100. For further discussion of paid-for television, see infra notes 103, 132–136,

and accompanying text.

101. See Dittmore & Hutchins, supra note 75, at 14 (expressing leagues’ inter-

ests in preventing live streaming apps to keep antitrust status).

102. See Perry, supra note 82, at 20 (“[C]ontrary to what various commentators

have assumed, no court has ever held that leaguewide agreements that license

sports programming on basic cable channels are, or are not, exempt from the

antitrust laws under the SBA.”).

103. See id. at 20, 23–28 (relying on statutory interpretation in Chi. Prof’l

Sports Ltd. P’ship v. Nat’l Basketball Ass’n, 808 F. Supp 646 (N.D. Ill. 1992)).

“Since antitrust exemptions must be characterized narrowly, we conclude that

TNT, like ESPN, falls outside the statutory meaning of ‘sponsored telecasting.’”

Chi. Prof’l Sports, 808 F. Supp. at 650 (reviewing historical interpretation of SBA’s

intent of “sponsored telecasting” in 1961 and determining it referred to free televi-

sion, which TNT is not). “While telecasting on TNT may be considered sponsored

telecasting because TNT does receive some revenues from advertising in addition

to subscription fees, pure subscription or pay-per-view telecasts clearly are not con-

sidered sponsored telecasting.” Chi. Prof’l Sports Ltd. P’ship v. Nat’l Basketball

Ass’n, 874 F. Supp. 844, 856 n.12 (N.D. Ill. 1995) (citation omitted) (discussing

how SBA only applies to agreements regarding “sponsored telecasting”), vacated,

95 F.3d 593 (7th Cir. 1996).

104. See Johnson, supra note 41, at 764 (discussing NFL’s ability to negotiate

as whole under the SBA and 15 U.S.C. § 1291, et seq. (2006)).

105. For further discussion of the SBA’s application, see supra notes 80–104

and accompanying text.

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produced works, including sports broadcasting rights.

106

Surpris-

ingly, many leagues did not utilize the Copyright Act right away,

most likely because of their antitrust exemption and because it is

unnecessary to file a copyright to ensure protection of one’s work

from individuals illegally copying and reproducing material.

107

The Copyright Act is the basis for most copyright claims, and its text

“ma[kes] specific reference to simultaneously recorded transmis-

sions of live sporting events being ‘fixed’” and copyrightable.

108

The Copyright Act protects “original works of authorship fixed in

any tangible medium of expression . . . from which they can be

perceived, reproduced, or otherwise communicated.”

109

Moreover, the

form or license the performance of copyrighted works publicly.”

110

Ultimately, the Copyright Act is meant to ensure fair protection and

return, typically monetary value through licensing or royalties, for a

creative work.

111

106. See generally 17 U.S.C. § 101 (2018) (providing forms of media and pro-

duced works). For further discussion of enacting the Copyright Act of 1976, see

infra notes 108–142 and accompanying text.

107. See 17 U.S.C. § 106 (detailing uncopyrighted material is still protected).

For further discussion of protecting practices of copyrighted work, see infra note

122 and accompanying text.

108. See generally 17 U.S.C. § 101 (illustrating copyright law); see also Nat’l Bas-

ketball Ass’n v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997) (addressing history

of copyright disputes centered on Copyright Act). Notably, the Copyright Act of

1976 is an amendment that overturned two Supreme Court cases, Fortnightly

Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) and Teleprompter

Corp. v. Columbia Broad. Sys., Inc., 415 U.S. 394 (1974). See Am. Broad. Co., Inc.

v. Aereo, Inc., 573 U.S. 431, 437–43 (2014) (detailing Congress’ intent of enacting

sulted in three main changes: (1) determining both broadcasters and viewers

“‘perform,’ because they both show the program’s images and make audible the

programs sounds”; (2) enacting the Transmit Clause, which depicts when an entity

performs publicly; and, (3) “regulat[ing] cable companies’ public performances of copy-

righted works,” including detailing complex licensing scheme and fees. Id. (empha-

sis added). Further, according to the court in Aereo: “Congress made these three

changes to achieve a similar end: to bring the activities of cable systems within the

scope of the Copyright Act.” Id. For further discussion of the Transmit Clause, see

infra notes 124–125 and accompanying text.

109. 17 U.S.C. § 102 (emphasis added) (portraying works protected under

110. Dittmore & Hutchins supra note 75, at 6 (describing specifically Section

106 of 1976 Act).

111. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417

(1984) (allowing authors and inventors exclusive right to their work under United

States Constitution). Article I, Section 8 of the United States Constitution states

Congress has the power “to promote the Progress of Science and useful Arts, by

securing for limited Times to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries.”

U.S. C

ONST

. A

. I, § 8.

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2. Examples of the Copyright Act’s Protections

Providing real accounts of a live game without authorization of

a league does not violate the Copyright Act.

112

Specifically, in Na-

tional Basketball Ass’n v. Motorola, Inc.,

113

the Second Circuit held the

the source of the information created during the games, such as the

statistics and results.

114

The Second Circuit reasoned athletic

events and performances do not constitute original works under

the Copyright Act.

115

Sporting events themselves are not original

works of authorship, because the sporting event is competitive with

“no underlying script.”

116

Broadcasting, on the other hand, is an

original authorship which is fixed via video recording.

117

Congress

made this distinction clear when it determined authorship includes

a sporting event covered with multiple cameras, “with a director

guiding the activities of the [ ] cameramen and choosing which of

their electronic images are sent to the public and in what order.”

118

Other examples of protected work under the Copyright Act include

literary, musical, and dramatic works, as well as pantomimes, chore-

ography, pictorial works, motion pictures and other audiovisual

works, sound recordings, and architecture.

119

This list is not ex-

haustive, nor is the protection boundless, because “the Copyright

112. See Matthew J. Mitten, A Triple Play for the Public Domain: Delaware Lottery to

Motorola to C.B.C., 11

HAP

. L. R

569, 571 (2008) (citing Motorola, Inc., 105 F.3d

at 847) (referring to information created by sporting events not protected under

113. 105 F.3d 841 (2d Cir. 1997).

114. See id. at 845 (pointing out accounts and results of event).

115. See id. (distinguishing original works).

116. See id. at 846–47 (explaining why sports are not original works of author-

ship but broadcasted coverage is); see also Edelman, supra note 16, at 481 (“A sport-

ing event in itself does not generally constitute an ‘original work of authorship’

because sporting events ‘are competitive and have no underlying script.’” (quoting

Motorola, Inc., 105 F.3d at 846)).

117. See Edelman, supra note 16, at 479 (“Generally, there is little doubt that

televised broadcasts of traditional sporting events constitute ‘original works of au-

thorship’ because the camera angles chosen for the broadcast and the manner of

game announcing both entail at least ‘a modicum of creativity.’” (quoting Feist

Publn’s, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991)).

118.

H.R. R

. N

94-1476, at 52 (1976) (describing how football games are

covered by four cameras with resulting broadcast representing authorship); see also

Feist Publn’s, Inc., 499 U.S. at 346 (explaining “originality requires independent

creation plus a modicum of creativity” including camera angles chosen and sports

reporting).

119. See generally 17 U.S.C. § 102(a) (listing examples).

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Act allows courts sufficient flexibility to protect other types of

works.”

120

3. Additional Legislation and Ongoing Challenges Under the Copyright

Act

The NFL appears to have begun “requir[ing] a copyright as-

signment as part of a telecast deal” in 1983 with the Copyright Of-

fice.

121

Notably, registration is considered good practice but is not

required to maintain copyright ownership, although today the NFL

consistently files copyrights.

122

Many sports leagues, including the

NFL, provide warnings via announcements to notify listeners and

viewers they are prohibited from retransmitting or reproducing

copyrighted material.

123

The Copyright Act defines “transmit” as

communication by a “device or process whereby images or sounds

are received beyond the place from where they are sent.”

124

Con-

gress added the Transmit Clause to the Copyright Act to emphasize

that when an entity provides coverage of an event, the public re-

ceives a transmission of the event.

125

The Copyright Act also led to additional legislation to regulate

transmissions, costs, and competition among providers.

126

For ex-

ample, the Cable Television Consumer Protection and Competition

Act of 1992 requires programming distributors, such as Verizon or

AT&T through DirecTV, to obtain permission from broadcasters

like ABC and CBS before they can carry the broadcaster’s pro-

120. Edelman, supra note 16, at 478 n.52 (internal quotation marks omitted)

(quoting

H.R. R

. N

94-1476, at 52) (discussing how list exemplifies what bill is

intended to protect, but list is not exhaustive).

121. Johnson, supra note 41, at 764–65 (noting copyright records before 1978

were not available in electronic database, but “starting in 1983, Copyright Office

records reflect increasing registrations for television game coverage”).

122. See id. at 765 (pointing out NFL had twelve games registered in 1983, but

“now has a consistent practice of registering each and every game telecast”); see also

17 U.S.C. § 106 (“The fact that a work is unpublished shall not itself bar a finding

of fair use if such finding is made upon consideration of all the above factors.”).

123. See Kirk Biglione, Warning: Those Copyright Warnings May Not Be Entirely

Accurate,

EDIALOPER

(Aug. 2, 2007), http://medialoper.com/warning-those-copy-

right-warnings-may-not-be-entirely-accurate/ [https://perma.cc/2QX6-69XN] (re-

porting specifically on NFL and MLB, and providing example of warnings: “This

copyrighted telecast is presented by authority of the Office of the Commissioner of

Baseball. It may not be reproduced or retransmitted in any form, and the ac-

counts and descriptions of this game may not be disseminated without express

written consent”).

124. 17 U.S.C. § 101 (referring to what is known as Transmit Clause).

125. See Dittmore & Hutchins, supra note 75, at 8 (indicating importance of

defining transmission).

126. For further discussion of examples of issues covered by additional legisla-

tion, see infra notes 127–131 and accompanying text.

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gram.

127

Programming distributors could include broadcasters

under a “Must Carry” rule, thereby requiring a distributor with a

certain number of “channels [to] set aside one-third of their chan-

nel capacity for local, free-to-air broadcasters.”

128

If the broadcast-

ers permit distributors to share their programming, it is known as

“retransmission consent” or “carriage fees.”

129

Retransmission fees

for sporting events are extremely expensive because of the large

audience and competition to obtain the rights.

130

A 2012 example

details this process:

Sunbeam Television Corporation operates WHDH, the

NBC affiliate in Boston. On January 14, 2012, Sunbeam

denied DirecTV access to its signal after DirecTV refused

to pay a 300% increase in retransmission fees. The timing

of the blackout occurred before popular NFL divisional

playoff games. The dispute was settled on January 27, one

week before the New England Patriots played in Super

Bowl 46, a game for which NBC had broadcast rights.

131

Currently, broadcast networks such as NBC, ABC, and CBS bid

on rights to obtain exclusive content for sporting events.

132

Profes-

sional sports leagues have threatened to broadcast events on paid

cable networks, including networks like ESPN and TNT, in order to

avoid copyright infringements and make it more difficult to copy

content on free-to-air broadcasters.

133

Many sporting events “have

127. See Dittmore & Hutchins, supra note 75, at 8 (introducing retransmission

fees and how video programming distributors developed their network).

128. Id. at 8–9 (noting in 1992 “some 40% of U.S. households relied on free-

to-air broadcasters”).

129. See id. at 9 (introducing terminology from course of business with

distributors).

130. See id. (discussing how debate of consent for retransmission is often cen-

tered around live sports content).

131. Id. (providing example of retransmission fees and debates of retransmis-

sion consent).

132. See id. at 9–10 (introducing existing business models currently used by

television networks with sports leagues); see also Cecilia Kang, Bidding War Between

Networks, Sports Leagues Will Increase Price of Cable TV,

ASH

. P

OST

(Jan. 23, 2015),

https://www.washingtonpost.com/business/economy/bidding-war-between-net

works-sports-leagues-will-increase-price-of-cable-tv/2015/01/23/d0cb19f4-9db8-

11e4-a7ee-526210d665b4_story.html?utm_term=.feff5aed61bd [https://perma.cc/

M2A5-VHMC] (reporting on networks like CBS, Fox, and TNT, bidding to air

events on their stations, resulting in increased prices due to “the growing number

of sports channels all bidding for the right to air popular events”).

133. See Dittmore & Hutchins, supra note 75, at 11 (suggesting major sporting

events would be made more restrictive on paid for networks because streaming

services “cannot hijack and exploit their programming without authorization”

(quoting Brief of Nat’l Football League and Major League Baseball as Amici Cu-

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already moved to national and regional cable sports net[works],”

but if courts rule against leagues in cases involving allegations of

illegal streaming of events, leagues will “stampede” to paid-for net-

works.

134

However, if all sports move to paid cable networks, news

outlets speculate this could lead to the “end of sports on free

TV.”

135

At the same time, many consumers are dropping cable bun-

dles such as ESPN, which “lost an average of 10,400 subscribers a

day between February 2016 and May 2016.”

136

One example of a recent case where the Supreme Court began

addressing this issue is American Broadcasting Co. v. Aereo, Inc.

137

Aereo, the Supreme Court sided with two sports leagues, the NFL

and MLB, after the lower courts held for Aereo, a streaming service

app.

138

The NFL and MLB argued the foundation of Aereo’s busi-

ness model takes broadcast retransmission rights and gives them to

“unlicensed commercial strangers that inefficiently engineer distri-

bution systems to avoid copyright liability”—a direct violation of the

139

The Court defended the two leagues’ abilities to

prevent Aereo from providing sporting event content under free-to-

air broadcasters, such as ABC, the party that initiated the suit.

140

The Aereo case highlights the central issue today’s sports leagues

and broadcasters face with illegal streaming: anyone may obtain ac-

cess to the transmission and may thereby infringe on broadcasters’

copyrights.

141

Sports leagues are protected under the Copyright

riae Supporting Petitioners, Am. Broad. Co., Inc. v. Aereo, Inc., 573 U.S. 431

(2013) (No. 13-461))).

134. John Eggerton, Leagues to Supremes: Aereo “Package” Is Game Breaker,

ROAD

. C

ABLE

(Mar. 10, 2014), http://www.broadcastingcable.com/news/ wash-

ington/leagues-supremes-aereo-package-game-breaker/129702 [https://

perma.cc/SD54-FT2K] (discussing leagues’ opposition to streaming service

Aereo); see also Dittmore & Hutchins, supra note 75, at 11 (reviewing cost perspec-

tive of transmission from free-to-air and pay television networks).

135. See, e.g., Dittmore & Hutchins, supra note 75, at 11 (providing news head-

lines from CNN “NFL and MLB: Aereo May Kill Sports on Free TV”).

136. Id. at 14 (suggesting leagues may not actually want to produce content

on broadcast networks). For further discussion of ESPN’s loss in subscribers, see

infra note 232 and accompanying text.

137. 573 U.S. 431 (2014).

138. See generally id. (focusing on NFL’s and MLB’s Copyright Act complaint).

139. See Brief of Nat’l Football League and Major League Baseball in Am.

Broad. Co., Inc. v. Aereo, 712 F.3d 676 (2d Cir. 2013) (attempting to preserve

existing business model and support retransmission fees) rev’d and remanded sub

nom. 573 U.S. 431 (2014).

140. See Aereo, 573 U.S. at 450–51 (holding for professional sports leagues be-

cause Aereo’s conduct was within scope of Copyright Act, infringing on sports

leagues’ rights).

141. See generally Dittmore & Hutchins, supra note 75, at 6–11 (detailing de-

bate with Aereo and sports broadcasting).

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Act, but if illegal streaming increases, the leagues fail to collect

from potential viewers.

142

C. Digital Millennium Copyright Act: Digitize and Stream

The need for new legislation arose as the internet grew into a

platform for media and telecom conglomerates to share and pro-

duce content.

143

As a result, Congress passed the Digital Millen-

nium Copyright Act (“DMCA”) in 1998.

144

The DMCA provided a

“compromise between copyright owners and digital content provid-

ers” by allowing sports leagues to instruct any party sharing copy-

righted material to remove the content.

145

The DMCA criminalizes

the production of devices and services intended to share copy-

righted material.

146

It also enumerates the rights of owners of copy-

righted material and explains how the owners may proceed when

they believe their rights have “been infringed, particularly but not

limited to, on the Internet.”

147

Title II of the DMCA, separately titled the Online Copyright

Infringement Liability Limitation Act, protects internet service

providers from liability if they follow “safe harbor guidelines and

promptly block access to alleged infringing material.”

148

Under Ti-

tle II, internet service providers must remove copyrighted material

when a copyright holder notifies the provider of an infringe-

142. For discussion of leagues’ protections under the Copyright Act, see supra

notes 106–141 and accompanying text.

143. For further discussion of new legislation focusing on internet services,

see infra notes 145–155 and accompanying text.

144. See generally DMCA, Pub. L. No. 105-304, 112 Stat. 2860 (1998); see also

U.S. Copyright Office, The Digital Millennium Copyright Act of 1998: U.S. Copyright

Office Summary, 1, (1998) available at http://www.copyright.gov/legislation/

dmca.pdf [https://perma.cc/VD3K-SZ6E] (noting date of Act and laying out how

DMCA amended Title 17 of United States Code).

145. Julie E. Cohen, WIPO Copyright Treaty Implementation in the United States, 21

. I

NTELL

. P

ROP

. R

236, 237 (1999) (describing NFL’s use of removing

content).

146. See U.S. Copyright Office, supra note 144, at 1 (discussing criminal as-

pects of act).

147. What Is DMCA?,

DMCA.

COM

, https://www.dmca.com/faq/What-is-

DMCA [https://perma.cc/AE72-WK2L] (last updated Apr. 20, 2017) (addressing

obligations and protections).

148. Andrew Rissler, Fair Use of Foul Balls: Major League Baseball Advanced Media

and its Counterproductive Takedown Notices to Fans, 27

ARQ

. S

PORTS

L. R

133, 135

(2016) (describing internet service providers’ duty and rights); see also Online Cop-

yright Infringement Liability Limitation Act,

S. R

. N

105-190 (1998) (codified

as amended at 17 U.S.C. § 512 (2010)) (discussing and analyzing DMCA

generally).

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ment.

149

Importantly, under Viacom International, Inc. v. YouTube,

Inc.,

150

internet service providers are not liable when their users ille-

gally post copyrighted material.

151

In Viacom, the court found You-

Tube had not encouraged users to share copyrighted material, and

it ruled similar internet service providers “have no duty to monitor

their websites for infringing content posted by their users.”

152

The Viacom court based its holding on a provision of Title II

requiring the internet service provider to receive immunity as long

as it meets three criteria.

153

The provider must: (1) not have actual

knowledge the material is infringing; (2) not receive financial bene-

fit from the infringed activity; and, (3) remove material “expedi-

tiously” upon notification.

154

Notably, the Copyright Act of 1976

“eliminated the requirement of notice on the part of the copyright

holder, and there is no requirement in the DMCA to issue a take-

down notice for every violation to maintain a copyright.”

155

At bot-

tom, Viacom suggests leagues may be hesitant to provide live

streaming content because internet service providers do not need

to monitor for users sharing pirated content.

156

However, such

concern could be misguided, as DMCA provides the same protec-

tion as the Copyright Act, except on the same digital medium

where streaming platforms are found.

157

As such, and as the next

Section discusses in greater detail, leagues need not fear streaming

and the threat of piracy.

158

Congress and the Court have given

149. See Rissler, supra note 148, at 135 (noting safe harbor provision also in-

cludes counter provision for internet service providers when user claims material is

not infringing); see also 17 U.S.C. § 512 (discussing liability).

150. 940 F. Supp. 2d 110 (S.D.N.Y. 2013).

151. See id. at 121 (reasoning provider cannot be liable without prior knowl-

edge of violation).

152. Id. (determining YouTube did not have intent to share infringed mate-

rial); see also Rissler supra note 148, at 136 (discussing duty to monitor for infring-

ing material).

153. See 17 U.S.C. § 512 (requiring, generally, no actual knowledge, no finan-

cial benefit, and removal of material); see also Rissler supra note 148, 136–37 (con-

sidering importance of internet service provider having actual knowledge of

material infringing on copyright and how service providers lose immunity under

§ 512).

154. See 17 U.S.C. § 512 (listing requirements for immunity).

155. Rissler supra note 148, at 139–40 (rejecting argument for adverse posses-

sion-like-approach for losing copyright abilities when no takedown notice is

issued).

156. For further discussion of Viacom, see supra notes 149–153 and accompa-

nying text.

157. For further discussion of DMCA’s strength, see supra notes 143–149 and

accompanying text.

158. For further discussion of leagues’ fears on piracy and how it should not

be considered a threat, see infra notes 160–171 and accompanying text.

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leagues a wealth of statutes and caselaw to protect their product

and to allow them to excel in the streaming market, just like con-

sumers want them to.

159

III. S

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ARKET

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REND

ETTER

Sports leagues currently register every broadcasted game in or-

der to maintain ownership over all televised material.

160

Courts

consistently rule leagues are the sole authors of their broadcasts,

and these rulings support the leagues’ initiative to continually regis-

ter every broadcasted event in recent years.

161

For example, an un-

authorized party could post copyrighted material of an event, such

as a live stream link to in-game-content, and the overseeing league

could file for an infringement violation against the party.

162

The

NFL specifically uses a different approach, opting to send “mass

takedown notices” to unauthorized parties who infringe on the

League’s content.

163

Because these notices are sent in mass form,

they fail to distinguish between posts violating copyright law and

posts complying with the League’s fair use policy.

164

The NFL could learn from the NBA and MLB in this re-

spect.

165

The NBA focuses on identifying parties who rebroadcast

159. For further discussion of leagues’ collective wealth of statutes and

caselaw, see supra notes 80–152 and accompanying text.

160. See Johnson, supra note 41, at 765 (discussing NFL’s ownership interest

of material); see also Gebert, supra note 93, at 1 (providing example of NFL’s “ag-

gressive intellectual property protections” with announcements for every NFL

game: “This telecast is copyrighted by NFL Productions for the private use of our

audience. Any other use of this telecast or any pictures, descriptions, or accounts

of the game without the NFL’s consent is prohibited”). However, leagues do not

need to register their copyrights to maintain ownership. See 17 U.S.C. § 102

(1990) (creating automatic copyright protection where authors meet both origi-

nality and fixation requirements, but not requiring registration). For further dis-

cussion of copyright registration practice, see supra note 122 and accompanying

text.

161. See, e.g., Dryer v. Nat’l Football League, 814 F.3d 938, 942–45 (8th Cir.

2016) (reasoning for registering broadcasted events under copyright acts); see gen-

erally 17 U.S.C. § 301(a) (2018) (providing statute indicating who owns material).

162. For further discussion of examples, fair use practices, and violations, see

infra notes 176–185 and accompanying text.

163. See Jeffrey Cobia, The Digital Millennium Copyright Act Takedown Notice Pro-

cedure: Misuses, Abuses, and Shortcomings of the Process, 10

INN

. J. L. S

. & T

ECH

387, 392, 399–400 (2009) (suggesting too much control by leagues in violation of

fair use policy).

164. For further discussion of fair use policy, see infra notes 172–187 and ac-

companying text.

165. See Rissler supra note 148, at 13 (“[T]he NBA[‘s] marketing strategy

seems to embrace the changes embodied by the new frontier of social media and

view it as an ally and an asset.”).

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full, unauthorized games, “rather than chasing down every little im-

age that may pop up and potentially frustrate its fans.”

166

NBA

Commissioner, Adam Silver, summarized the league’s rationale for

using this technique.

167

He said, “We have always believed that fans

sharing highlights via social media is a great way to drive interest

and excitement in the NBA. . . . Our enforcement efforts are not

aimed at fans, but rather are focused on the unauthorized live

streaming of our games.”

168

The NFL could also follow the exam-

ple of the MLB, which recently partnered with the social media

platform Snapchat.

169

The two collaborated to create “Snapchat

Day,” where MLB players were allowed to use Snapchat during

spring training games to engage with fans and live stream con-

tent.

170

The use of social media and sharing of content online is

proof leagues can strike a balance to control copyrighted

material.

171

A. Fair Use Policy: Examining Equitable Consumption and

Leagues’ Unfair Takedown Tactics

The leagues’ frequent use of DMCA takedown notices seems to

contradict the fair use provisions of the Copyright Act.

172

The fair

use provisions allow an individual to use copyrighted material with-

out infringing on the copyright.

173

Fair use is the crux of copyright

166. See id. (providing examples of how NBA specifically is avoiding too much

control but also encouraging fans to access material).

167. See Steven Perlberg, Deadspin and SB Nation Are Back Tweeting Football

GIFs,

ALL

. J.

(Oct. 20, 2015), http://www.wsj.com/articles/deadspin-and-sb-

nation-are-back-tweeting-football-gifs-1445357918 [https://perma.cc/5FZ2-BLMP]

(reviewing NBA’s stance).

168. Id. (pointing out how sharing shorter clips and highlights promotes NBA

compared to illegally streaming games which hurts revenue). The NBA has also

embraced sharing video clips on social media in order to generate more interest in

the sport among younger viewers which has been largely successful on such plat-

forms. See Roberto A. Ferdman, What the NBA Gets That the Other Big Sports Leagues

Don’t,

ASH

. P

OST

(Apr. 6, 2015), https://www.washingtonpost.com/news/wonk/

wp/2015/04/06/what-the-nba-getsthat-the-other-big-sports-leagues-dont/ [https:/

/perma.cc/45WJ-CMHY] (discussing use of newer social media platforms).

169. See Rissler, supra note 148, at 145 (suggesting adding social media in

sporting events follows encouraging view for fans’ use of social media).

170. See id. (providing MLB Commissioner Rob Manfred’s desire to share

baseball “on as many platforms as possible. And . . . strike a realistic balance be-

tween protecting what we regard to be very valuable intellectual property rights on

the one hand with allowing fans to use as many platforms as possible”).

171. See id. (noting skepticism of piracy and issues surrounding fan use).

172. See 17 U.S.C. § 107 (2018) (depicting fair use practices). For further dis-

cussion of takedown notices violating fair use policy, see infra notes 187–192 and

accompanying text.

173. See Edelman, supra note 16, at 478 (referring to fair use as “for a legiti-

mate purpose” and how copyright protection is not boundless); see also Rissler,

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law because it allows the public to use copyrighted works without

asking permission from the copyright holder as long as the use of

the material does not “unduly interfere with the copyright owner’s

market for a work.”

174

There are four factors to consider to deter-

mine whether a particular use will “unduly interfere” with the copy-

right owner’s rights: (1) the purpose and character of the use; (2)

the nature of the copyrighted work; (3) the amount and substantial-

ity used in relation to the copyrighted work; and, (4) the effect of

the use upon the potential market or value of the copyrighted

work.

175

Under the first factor, the central issue is whether the material

differs or has been altered, and whether the alteration is transform-

ative in that it creates a new expression or message.

176

Notably, the

fair use provisions of the Copyright Act state “the fair use of a copy-

righted work, including such use by reproduction in copies or pho-

norecords or by any other means specified by that section, for

purposes such as criticism, comment, news reporting, teaching . . . ,

scholarship, or research, is not an infringement of copyright.”

177

This

means a consumer may live stream a televised game for non-com-

mercial use, but if the consumer is not streaming the game for an

educational purpose or one of the other listed purposes, then the

consumer is committing an infringement.

178

If a consumer streams

a televised game and is accused of copyright infringement, he or

she cannot argue the game is newsworthy and should therefore be

protected under the First Amendment.

179

This argument would

supra note 148, at 145–50 (detailing fair use policy and application). For further

discussion of fair use, see infra notes 174–186 and accompanying text.

174. Fred Von Lohmann, Unintended Consequences: Twelve Years Under the

DMCA,

LEC

. F

RONTIER

OUND

, at 9 (2010), available at https://www.eff.org/files/

eff-unintended-consequences-12-years_0.pdf [https://perma.cc/KH7V-WE5J]

(referencing fair use ability to use copyrighted material).

175. See 17 U.S.C. § 107 (listing factors).

176. See Rissler, supra note 148, at 148 (detailing purpose and use of material,

and how if material is sufficiently different, then there is no infringement).

177. 17 U.S.C. § 107 (emphasis added) (noting what is not considered in-

fringing on copyrighted material).

178. See, e.g., New Bos. Television v. Entm’t Sports Programming Network

(No. 81-1010-Z), 1981 WL 1374, at *2 (D. Mass. Aug. 3, 1981) (suggesting viola-

tions of fair use policy even if stream is non-commercial and not for educational

purposes). In Bos. Television, the court held rebroadcasting highlights from a news

program, without a license, could constitute substantiality for purposes of a fair use

analysis. See Edelman, supra note 16, at 480 (reviewing Bos. Television and rejecting

“any argument that the live streaming of televised game broadcasts from one’s

television set constitutes ‘fair use’”).

179. See Edelman, supra note 16, at 480 (discussing potential scenario).

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fail because the fair use doctrine does not permit a consumer to

stream an event by copying the protected broadcast.

180

The second factor in the fair use analysis pertains to the nature

of the copyrighted work, and it focuses on the actual act of broad-

casting games, rather than the material shown.

181

The third factor,

which looks at the amount and substantiality used in relation to the

copyrighted material, usually focuses on the length of the infringe-

ment for streaming infringement cases.

182

Under this factor, live

rebroadcasting of smaller portions of an event may be perceived as

substantial.

183

Finally, the fourth factor pertains to the effect of the

use upon the market and value of the work, and it focuses on the

material’s overall impact on the broadcasting and sports indus-

tries.

184

works and may determine when and how a copyright is violated.

185

The fair use provisions provide a useful framework for determining

when an action constitutes a violation of a copyright holder’s

rights.

186

Given the context of the fair use policy, it appears the NFL is

ignoring the fair use statute to monopolize and control any mate-

rial associated with its name.

187

The NFL goes too far to prevent

consumers from using or streaming content in ways that would be

deemed fair uses.

188

National Basketball Association v. Motorola,

Inc.

189

suggests the NFL may be extending its reach with the NFL’s

180. See id. (arguing courts should not use fair use doctrine to ignore copy-

rights when underlying material is of public importance).

181. See Rissler, supra note 148, at 148 (distinguishing results and actual show-

ing of event).

182. See id. at 149 (discussing social media app, Vine, which shows only six

second clips and “would almost certainly qualify as ‘de minimis’ infringement of a

183. See, e.g., New Bos. Television, 1981 WL 1374, at *2 (holding unlicensed

rebroadcasting of highlights would likely violate fair use purposes).

184. See Edelman, supra note 16, at 480 (“[T]here is little doubt that the live

streaming of televised sports broadcast has a negative effect on the market.”).

185. See, e.g., New Bos. Television, 1981 WL 1374, at *3 (establishing that copy-

right holder brings claim alleging injury from negative effect in markets).

186. See Rissler, supra note 148, at 145–46 (examining fair use provisions’

application).

187. See David Post, Are You Ready for Some Football? (Copyright Department),

ASH

. P

OST

(Feb. 3, 2016), https://www.washingtonpost.com/news/volokh-con

spiracy/wp/2016/02/03/are-you-ready-for-some-football-copyright-department/

?utm_term=.6697dfb3ece6 [https://perma.cc/HR5B-X74P] (reporting on mo-

nopoly-like grasp used by NFL).

188. See id. (discussing whether legally and morally wrong for NFL to aggres-

sively litigate against individuals over copyright disputes).

189. 105 F.3d 841 (2d Cir. 1997).

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telecast warning.

190

Motorola reasoned a league makes inaccurate

statements when it delivers a warning against the use of pictures,

descriptions, or accounts of the game without the league’s consent

because the “sporting event itself and the data resulting from it are

not ‘authored’ content that is copyrightable.”

191

Therefore, the tel-

ecast warnings are deceptive, misrepresent copyright law, and mis-

lead consumers’ fair use rights.

192

Even though the SBA protects leagues against antitrust viola-

tions, the NFL’s telecast warnings arguably conflict with Section 1

of the Sherman Antitrust Act when handling social media.

193

Sec-

tion 1 of the Sherman Antitrust Act states:

Every contract, combination in the form of trust or other-

wise, or conspiracy, in restraint of trade or commerce

among the several States, or with foreign nations, is hereby

declared to be illegal. Every person who shall make any

contract or engage in any combination or conspiracy

hereby declared to be illegal shall be deemed guilty of a

felony, and, on conviction thereof, shall be punished by

fine.

194

Most copyright infringements are not used for a commercial

nature and therefore would not violate the fair use policy.

195

Simi-

larly, most infringements do not have a significant influence on the

market or value of the copyrighted work and therefore would also

not violate the fair use policy.

196

Such infringements are likely safe

within the fair use statute.

197

The fair use provisions put the NFL at

a high risk of exposure to lawsuits from falsely accused infringers,

190. See id. at 846 (reviewing legality of telecast warning).

191. See Gebert, supra note 93, at 5 (quoting NBA v. Motorola Inc., 105 F.3d at

846) (discussing what is protected under copyright law in context of sporting

events).

192. See Eric Bangeman, FTC Complaint Flags NFL, MLB, Studios for Overstating

ECHNICA

(Aug. 1, 2007, 9:00 AM), https://arstechnica.com/

tech-policy/2007/08/ftc-complaint-flags-nfl-mlb-studios-for-overstating-copyright-

claims/ [https://perma.cc/JU4B-9RJB] (suggesting overreach by NFL’s warnings);

see also Rissler, supra note 148, at 140, 152 (arguing that relaxing aggressive policy

on takedown notices would be more reasonable approach).

193. See Gebert, supra note 93, at 7 (discussing issues with antitrust violations).

194. 15 U.S.C. § 1 (providing text of Sherman Act).

195. See 17 U.S.C. § 107 (pointing out copyrighted broadcasts); see also Rissler,

supra note 148, at 147 (discussing fair use policy).

196. See 17 U.S.C. § 107 (noting commercial use).

197. See id. (stating safe harbor provisions).

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adding another reason why leagues should opt to stream their own

content.

198

B. Boxing It All Up: Leagues Should Adapt Coverage and

Provide Easy Access to Sports Outside the TV Box, or

Fight Off Piracy

Sports leagues can and should capitalize on consumers’ attrac-

tion to live streams of sporting events to optimize the amount of

consumers they reach and earn more money from advertisers.

199

The NFL, despite its aforementioned shortcomings, successfully did

this when it awarded Yahoo the sole rights to stream coverage of a

football game.

200

This was the first time the NFL awarded stream-

ing rights, and Yahoo made the game available on all of its digital

platforms.

201

Despite the potential for increased revenue, the sports industry

remains concerned about the surge in live streaming technology

because of the potential for unauthorized broadcasts of games.

202

For sports leagues, “live-streaming apps . . . threaten TV’s golden

egg.”

203

Leagues worry “piracy is easier than ever” because consum-

ers can “[j]ust hold a smartphone up to a television to record and

stream what is airing.”

204

As a result, some leagues have imple-

198. For discussion of fair use provisions application and interpretation, see

supra notes 172–197 and accompanying text.

199. See Kevin Clark, Yahoo Wins Rights to NFL’s First Streaming-Only Game,

ALL

. J.

, https://www.wsj.com/articles/yahoo-wins-rights-to-nfls-first-internet-only-

streaming-game-next-season-1433343642 [https://perma.cc/YCL3-6XAH] (last

updated Jun. 3, 2015, 3:53 PM) (suggesting first live streamed game would attract

many online viewers).

200. See id. (reporting Yahoo as first to live stream NFL game).

201. See id. (discussing use of “a Web browser, within a Yahoo app on a mobile

phone, or on a television equipped for streaming video”).

202. See Edelman, supra note 16, at 476 n.34 (referring to Compl. at ¶ 38,

Showtime Networks, Inc. v. John Doe (No. 2:15-CV-03147), 2015 WL 1910767

(C.D. Cal. Apr. 28, 2015) and temporary restraining order would prevent defen-

dant from infringing on exclusive broadcast rights of boxing match including “the

critical right of first transmission and publication of an extremely valuable sporting

event”).

203. See Cecilia Kang & Will Hobson, Periscope and Other New Apps Threaten TV’s

Golden Egg: Live Sports,

ASH

. P

OST

(May 6, 2015), https://www.washington

post.com/business/economy/new-apps-threaten-tv-networks-golden-egg-live-

sports/2015/05/05/b5d0b836-f347-11e4-84a6-6d7c67c50db0_story.html?noredi

rect=on&utm_term=.14542420d26c [https://perma.cc/82FQ-9RP9] (discussing

controversial view on live streaming sporting events and its threat to television).

204. Id. (noting piracy issues and smartphone capabilities); see also Bode,

supra note 45 (“Many users flocked to [streaming] services because they provided a

less-expensive, more flexible alternative to traditional cable. Now, if the industry

isn’t careful, it could lose a sizeable chunk of this newfound audience back to

piracy . . . .”) (emphasis added).

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mented stricter policies, including policies prohibiting media mem-

bers from streaming any content other than interviews after the

games.

205

1. The Boxing Industry’s Embrace as a Model

Leagues can still transition into streaming content despite the

apprehension they may have to do so.

206

The boxing industry pro-

vides a strong example of a successful transition, especially given

the piracy issues it faced during the boxing match between Floyd

Mayweather, Jr. and Manny Pacquiao.

207

The 2015 match between

Pacquiao and Mayweather led to one of the largest mass piracy

events involving live streaming and sports.

208

HBO and Showtime

broadcasted the fight, as the sole licensors, and sold access to view

the fight for approximately one hundred dollars.

209

The networks

called it the “Fight of the Century” due to ongoing speculation of

the bout for years.

210

Additionally, HBO and Showtime invested

heavily in advertising the match.

211

They expected a massive gain

from selling pay-per-view access, and they ultimately made more

than four hundred million dollars in sales.

212

But Manny Pac-

quiao’s promoter, Todd DeBoef, expressed concern over potential

piracy issues with the fight.

213

He emphasized how piracy has

changed from “stealing pay-per-view through the boxes, and then it

205. See Edelman, supra note 16, at 476 (describing NBA and NHL policies).

206. For further discussion of an example of a league’s transition into stream-

ing, see infra notes 207–228 and accompanying text.

207. For further discussion of boxing’s success and lessons, see infra notes

208–229 and accompanying text.

208. See Edelman, supra note 16, at 476 (citing Andrew Wallerstein, Did Boxing

Match Start Fight Between Twitter, Hollywood?

. T

RIB

May 6, 2015, at 6) (noting

fight occurred on May 2, 2015 and although piracy via live streaming is not new, “it

may well have achieved a new level of visibility this weekend”).

209. See id. (citing Scott Mayerowitz, Problems with the Fight? You Weren’t the Only

One,

IRGINIAN

-P

ILOT

(May 4, 2015)) (discussing price of boxing match and pro-

ducers’ cut).

210. See id. (suggesting hype and known success of fighters would attract large

audience).

211. See id. (indicating event was heavily promoted).

212. See Don Kaplan & Christian Red, Live Streams of Mayweather-Pacquiao Fight

Latest Battle in Fight Against Online Piracy,

N.Y. D

AILY

EWS

(May 4, 2015), https://

www.nydailynews.com/sports/online-piracy-cuts-hbo-profit-mayweather-pacquiao-

article-1.2210041 [https://perma.cc/QBY7-L7L9] (noting revenue despite mass

piracy and live streaming of boxing match).

213. See Darren Rovell, Periscope a Focus in Concern Over Lost Mayweather-Pac-

quiao PPV Orders, ESPN (May 5, 2015), http://www.espn.com/boxing/story/_/id/

12822727/illegal-streaming-periscope-arises-concern-lost-pay-per-view-orders-floyd-

mayweather-manny-pacquiao-fight [https://perma.cc/F3ZF-V65T] (highlighting

apps used for streaming).

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moved to digital cards, and then it was through YouTube and web-

sites, and now, it’s [live streaming].”

214

Unfortunately for the net-

works, DeBoef’s concerns proved to be valid.

215

Although it is

unclear exactly how many pay-per-views of the fight were lost be-

cause of illegal streaming, one streaming site reported more than

10,000 people watched its live stream of the fight.

216

The high vol-

ume of streamers also caused delays and lags on the networks’ pay-

per-view streams of the fight.

217

An HBO executive even asked to

delay the fight by thirty minutes so the network could receive addi-

tional pay-per-view orders and then allow access for those

viewers.

218

2. Applying Boxing’s Model in the Leagues

The boxing industry learned from its streaming issues and is

now embracing streaming as a method for reaching a wider audi-

ence.

219

This decision to embrace streaming is a smart one, espe-

cially in light of a recent announcement by HBO, the leading

network in boxing coverage for the past forty-five years.

220

HBO

announced on September 27, 2018, it would no longer televise box-

ing.

221

In a statement accompanying the news, HBO wrote, “Our

214. Id. (referring to Twitter’s live streaming app Periscope as well as other

streaming services used to pirate fight).

215. See id. (discussing illegal streaming of event).

216. See id. (referring to link used by writer for tech site Mashable, meaning if

10,000 viewers were on one link at one hundred dollars per view, the result would

be one million dollars in lost revenue). Consider a more recent fight, also includ-

ing Floyd Mayweather, against Conor McGregor, where reports suggest nearly

three million people pirated the fight. See Terry Collins, Millions Illegally Streamed

Mayweather-McGregor Fight,

NET

(

Aug. 29, 2017, 6:37 AM), https://www.cnet.com/

news/illegal-streaming-of-mayweather-mcgregor-fight-reaches-millions/ [https://

perma.cc/8462-UBNY?type=image] (“The company didn’t have data about how

many illegal streams had been created for Mayweather’s fight with fellow boxing

champ Manny Pacquiao in 2015.”).

217. See Rovell, supra note 213 (discussing issues with streaming).

218. See id. (noting those who paid to view fight had issues with their own

stream). DirecTV spokesman, Darris Gringeri suggested any large broadcasting

event comes with traffic jams when he said: “[t]his was the largest pay-per-view

event in our history, and, as with every other TV provider, there was a temporary

traffic jam that affected a small percentage of our consumers.” Id. (suggesting any

large broadcasting event comes with traffic jams).

219. For further discussion of boxing’s lesson from streaming events, see infra

notes 221–237 and accompanying text.

220. See Dan Rafael, HBO to Drop Its Boxing Coverage at End of 2018, ESPN

(Sept. 27, 2018), http://www.espn.com/espnw/sports/article/24814171/hbo-

drop-boxing-coverage-end-2018 [https://perma.cc/2EGV-SHEN] (giving history

of HBO’s boxing events).

221. See id. (discussing HBO’s plan to abandon boxing coverage); see also Wal-

lace Matthews, HBO Says It is Leaving the Boxing Business,

N.Y. T

IMES

(Sept. 27,

2018), https://www.nytimes.com/2018/09/27/sports/hbo-boxing.html [https://

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mission at HBO Sports is to elevate the brand. We look for televi-

sion projects that are high-profile, high access, and highly ambi-

tious.”

222

The announcement came after one of HBO’s recent

fights, the bantamweight title eliminator of Juan Francisco Estrada

versus Felipe Orucuta.

223

The fight drew only 298,000 viewers,

thereby becoming “one of the lowest-viewed fights in HBO his-

tory.”

224

At HBO’s height in boxing coverage, it attracted as many

as five million viewers per fight.

225

Now, of the nearly forty million

people who subscribe to HBO, an average of only 820,000 viewers

watched its boxing telecast in 2018.

226

HBO’s statement touched

on the lack of consumers who watch televised fights, and it cited

streaming as part of its decision to cut boxing from its program-

ming.

227

Specifically, the network pointed out that although

“[t]here is more boxing than ever being televised and distributed,”

streaming services and other programs have taken over, and the

programing is no longer unique.

228

HBO’s statement about the prevalence of streaming is accu-

rate.

229

For example, one subscription video streaming service,

DAZN, recently signed a one billion dollar agreement with the pro-

motional company Matchroom Boxing to provide a streaming ser-

vice for boxing fights over the next eight years.

230

Additionally, in

August 2018, ESPN agreed to a deal with Top Rank, a boxing pro-

motion company, to air fifty-four matches, including on ESPN Plus,

perma.cc/B5XQ-DDTJ] (noting HBO had no fights scheduled after October 27,

2018).

222. Rafael, supra note 220 (noting announcement was not shocking because

“[t]he network’s commitment to the sport has clearly waned in recent years and its

quality of fights has dropped at a time when there has been more competition”) (emphasis

added).

223. See id. (noting when HBO made its decision).

224. Id. (pointing out decline in viewership of HBO covered fights); cf. Mat-

thews, supra note 221 (noting viewers at 349,000 for same fight, but still listing as

“one of the lowest-rated boxing matches in HBO’s history”).

225. See Matthews, supra note 221 (discussing peak of HBO’s boxing

coverage).

226. See id. (suggesting viewership is about two percent of total audience, op-

posed to one third of its consumers during peak of boxing coverage).

227. See Rafael, supra note 220 (examining HBO’s decision to abandon

boxing).

228. Id. (emphasis added) (suggesting programing is not unique enough to

consistently attract more viewers).

229. For further discussion of prevalence of streaming boxing events, see infra

notes 230–232 and accompanying text.

230. See Matthews, supra note 221 (providing fights on DAZN at $9.99 per

month through internet and smartphone apps).

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a subscription-based streaming service.

231

However, even though

ESPN has a streaming service, the boxing matches it streams may

continue to reach a smaller audience because ESPN saw its sub-

scribers decline from one hundred million to eighty-seven million

in 2012.

232

ESPN’s deal with Top Rank also benefits the network by pro-

viding it with an opportunity to collaboratively dictate the schedule

of fights aired, further illustrating the value added when embracing

streaming.

233

Typically, the major sports leagues are able to control

the scheduling, thereby limiting ESPN’s say in its broadcasting

choices.

234

During this process, the sports leagues would buy com-

mercial slots on the broadcasted channel to advertise an event, and

the sports league would sell sponsorship to the venue signs.

235

However, because ESPN and Top Rank invested together, the two

are able to “smooth out” the most important aspect—the advertis-

ing dollars—by engaging in a collaborative process to sell as much

advertising as possible.

236

So far, ESPN has achieved this by airing

Top Rank fights after other notable events, such as college foot-

ball’s Heisman award ceremony, and future NBA All-Star games

and Super Bowls.

237

The boxing industry’s success with streaming has kept the

sport afloat at a time where ratings have decreased in major sports

leagues in recent years.

238

During the majority of the 2017 season,

231. See Kevin Draper, Checking in on ESPN’s Big Bet on Boxing. (Yes, Boxing.),

N.Y. T

IMES

(Dec. 17, 2017), https://www.nytimes.com/2017/12/17/sports/espn-

boxing.html?module=inline [https://perma.cc/8HK2-LRPG] (noting seven-year

deal to air on various outlets, including ESPN and ABC, both owned by Disney,

and ESPN Plus, its streaming service, with aim to “alter the economics and visibility

of boxing”) (emphasis added).

232. See id. (suggesting consumers decide to live more and more without pay-

for channels); see also Mathews, supra note 1, at 220–21 (indicating ESPN “is now

feeling the effects of the changing media landscape”). In 2015, reports suggested

ESPN lost seven percent of its subscription base since 2011. See Becky Sullivan,

Once Immune to Cord-Cutting, ‘King of Live Sports’ Finds Throne Shaken,

NPR

(July 19,

2015, 5:36 PM), http://www.npr.org/2015/07/19/424447488/ onceimmune-to-

cord-cutting-king-of-live-sports-finds-throne-shaken [https://perma.cc/9XL4-

HF9V] (“[T]he trend is accelerating: 3.2 million subscribers have left since May

2014.”).

233. For further discussion of boxing’s ability to plan and schedule with

ESPN, see infra notes 234–237 and accompanying text.

234. See Draper, supra note 231 (“ESPN usually falls prey to . . . major sports

leagues that set the scheduling.”).

235. See id. (juxtaposing how Top Rank and ESPN are operating).

236. See id. (obtaining this advertising goal “has so far eluded the sport”).

237. See id. (“Top Rank doesn’t particularly care on which Saturday nights its

bouts take place. It happily created a card for after the Heisman ceremony . . . .”).

238. See, e.g., Ken Belson et al., TV Viewership Falls in N.F.L. and Premier League:

A Blip, or Something Worse?, N.Y.

IMES

(Oct. 26, 2016), http://www.nytimes.com/

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the NFL’s television ratings were down by eight percent.

239

Ver-

izon, as the parent company of Yahoo, expanded its role in live

streaming by agreeing to a deal with the NFL to live stream all local

market and national games on Verizon-owned media properties.

240

A unique aspect of the deal allows Verizon to create jointly devel-

oped original NFL content.

241

The NFL started to expand streaming options in 2014 when

Verizon agreed to stream games for free via the NFL Mobile app.

242

The NFL continued to offer live streams of games in 2015 when it

struck a deal to allow Yahoo to provide free live streaming of a

game in London, and in 2017 when the NFL allowed Amazon to

stream eleven Thursday night national football games.

243

NFL

Commissioner Roger Goodell apparently recognizes that streaming

is a significant trend.

244

He stated that more fans are moving to

devices such as smart phones to obtain content, and he said the

2016/10/27/sports/football/tv-viewership-falls-in-nfl-and-epl-a-blipor-something-

worse.html [https://perma.cc/V67M-3CL9] (focusing on Premier League ratings,

English soccer league, and NFL ratings decrease). A recent report looked at the

ratings dip in NFL viewership, focusing on political protests, but found cord cut-

ting, good football, and home team loyalty controlled the audience more. See Matt

Wynn & John Kelly, In NFL Ratings, Good Football Trumps Politics,

USA T

ODAY

(Oct.

9, 2018, 12:16 PM), https://www.usatoday.com/in-depth/news/2018/10/09/

trump-nfl-ratings. . .rotests-what-data-really-show-anthem-kneeling-viewership/

996531002/ [https://perma.cc/K2HX-R2YK] (“The data show that quality foot-

ball and home team loyalty drove the TV audience far more than political tribal-

ism.”). USA Today’s report looked at areas where ratings dropped the most, as

well as President “Trump-leaning markets” which happened to have “bad football.”

See id. (discussing decrease in ratings is not surprising given how often people are

cutting their cable). “The NFL remains the king of TV ratings. All TV program-

ming is taking a ratings hit as cord-cutting consumers switch to streaming services and

other digital entertainment options. . . . [A] whopping 37 of the 50 top-rated shows in

2017 were NFL games, Nielsen says.” Id. (emphasis added) (pointing out success

and consumer’s preferences with streaming abilities).

239. See Daniel Roberts, Verizon Strikes Extensive Live-Streaming Deal with NFL,

AHOO

! F

INANCE

(Dec. 11, 2017), https://finance.yahoo.com/news/verizon-

strikes-extensive-live-streaming-deal-nfl-132440572.html/ [https://perma.cc/

GKQ7-DVU9] (noting through thirteen of seventeen weeks of NFL season and

how political controversy has added to this decline).

240. See id. (providing deal is available for all consumers regardless of mobile

network via Verizon media properties such as Yahoo Sports and AOL). Local mar-

ket games include those within a certain area—for example: “You will still not be

able to stream an out-of-market Sunday game, such as the Patriots vs Broncos on a

Sunday at 1pm if you live in New York City.” Id. (reporting that national market

games include those broadcasted for every market).

241. See id. (highlighting importance of original content).

242. See id. (detailing expansion to streaming).

243. See id. (laying out deals made over past several years); see also Kaufman,

supra note 3 (reporting on Amazon buying out Twitter’s deal with NFL for Thurs-

day night games).

244. See Roberts, supra note 239 (noting leagues’ awareness of streaming

trends).

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NFL expects to receive two hundred million unique visitors per

month on its mobile and digital sources.

245

Twitter also agreed to

live stream NFL games, and it struck additional streaming deals

with the MLB, NHL, the Wimbledon tennis tournament, and Pac-

12 college sports.

246

3. An Example of Networks Embracing Streaming

Several broadcast stations have set up sports networks, similar

to the flagship ESPN program.

247

For example, CBS Sports HQ

provides twenty-four-hour free content across different devices, and

it provides news, highlights, and analysis, including, “live news and

reporting with game previews . . . projects, and statistical break-

downs.”

248

CBS saw success with CBSN, its streaming news network,

and it hopes to replicate CBSN with CBS Sports HQ and provide

material to digital platforms.

249

The goal with CBS Sports HQ is to

attract viewers who do not subscribe to television programs.

250

Younger viewers are more attracted to programming online

through “on-demand subscription services like Netflix, or over-the-

top live TV services like Sling TV, Hulu Live TV, YouTube TV and

245. See id. (suggesting partnership with streaming devices may reach more

users or in conjunction with television reach wider audience); cf. Henry Bushnell,

Inside the Complex World of Illegal Sports Streaming,

AHOO

! S

PORTS

(Mar. 27, 2019,

12:08 AM), https://sports.yahoo.com/inside-the-complex-world-of-illegal-sports-

streaming-040816430.html (reporting NBA relies on research that indicates there

is more interest in games than ratings reflect, likely due to piracy and streaming

calculations).

246. See Dittmore & Hutchins, supra note 75, at 14 (indicating “sports organi-

zations are turning to alternative ways of reaching consumers”).

247. See, e.g., Sarah Perez, CBS Launches a 24/7 Streaming Sports News Network,

CBS Sports HQ,

ECH

RUNCH

(Feb. 2018), https://techcrunch.com/2018/02/26/

cbs-launches-a-24-7-streaming-sports-news-network-cbs-sports-hq/ [https://

perma.cc/XF6N-C9MY] (describing launch of CBS Sports HQ).

248. Id. (explaining content provided); see also Brian Steinberg, CBS Launches

Streaming Sports-News Outlet CBS Sports HQ,

ARIETY

(Feb. 26, 2018, 5:00 AM),

https://variety.com/2018/digital/news/cbs-sorts-hq-live-streaming-1202710150/

(reporting how CBS Sports HQ will be available through “TV devices including

Amazon Fire TV, Apple TV and . . . mobile app[s] for iOS and Android”).

249. See Perez, supra note 247 (“[CBSN] grew to 287 million streams in 2017,

up seventeen percent over 2016—which was an Election year . . . .”).

250. See id. (noting “younger viewers” no longer watch television because of

canceled subscriptions or they never signed up to begin with); see also Sahil Patel,

CBS Aims To Grow Sports HQ within its Network of Streaming Channels,

IGIDAY

(Dec.

24, 2018), https://digiday.com/media/cbs-aims-to-grow-sports-hq-within-its-net-

work-of-streaming-channels/ [https://perma.cc/Q9PW-BJR3] (noting CBS Sports

HQ as “free, ad-supported streaming channel” focusing on viewers who no longer

pay for cable) (emphasis added).

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others.”

251

This is what CBS is trying to mimic by adapting its sports

coverage and providing easy access to its content outside traditional

television.

252

C. Changes in Consumers: Following the Ad Dollars, Increasing

Prices, and Unbundling Sports from Cable

Amidst the change in technology, cable costs have gone up,

and viewership has gone down.

253

With these developments, con-

sumers tend to look for different options within pay-TV, or cable

bundles, to satisfy their interests.

254

In 2013, the pay-TV industry

lost subscribers for the first time in history after customers switched

to smaller bundled packages.

255

For example, by 2014, ESPN

reached fewer homes than it had in 2010.

256

Many advertisers are

“terrified” of the ratings plunge, which is directly attributable to the

rise in streaming services.

257

Viewership fluctuated during the 2018 NFL season.

258

For ex-

ample, CBS’s coverage of the 1:00 PM week-one NFL games was

251. Perez, supra note 247 (discussing streaming services); see also Patel, supra

note 250 (reporting on CBS Sports HQ’s “strong interest from advertisers” due to

digital inventory).

252. See Perez, supra note 247 (highlighting CBS’s goal, as former Chairman

and CEO Leslie Moonves stated: “we are creating best-in-class direct-to-consumer

streaming platforms that are positioning us to be leaders in the future of premium

content distribution”) (emphasis added). Over-the-top TV is a term used for content

provided via internet, without a cable subscription or satellite pay-TV. See Sahil

Patel, WTF is OTT?,

IGIDAY

(July 7, 2015), https://digiday.com/media/what-is-

over-the-top-ott/ [https://perma.cc/Y8CV-F7HU] (explaining OTT as over-the-

top, and looking at its development in streaming and traditional cable).

253. See Mathews, supra note 1, at 204 (examining increase in cost for tradi-

tional cable TV, due to live sports broadcasting rights, although consumers have

begun canceling subscriptions at record rates); see also Wynn & Kelly, supra note

238 (“As has been well-documented, NFL viewership on TV was down in most

places.”). For further discussion of decrease in viewership, see supra note 239 and

accompanying text.

254. See Popper, supra note 7 (reporting loss of subscribers and decline in

viewership, not just of cable, but sport broadcasts as well).

255. See id. (observing decline in customers and change in preferences).

256. See id. (suggesting change in trends for viewership). For further discus-

sion of ESPN’s decreased viewers, see supra note 232 and accompanying text.

257. See Popper, supra note 7 (discussing advertisers’ fear); see also Suzanne

Vranica & Shalini Ramachandran, Cable TV Group Blames Subscription Web TV for

Ratings Woes,

ALL

. J.

(Mar. 10, 2015, 6:41 PM), https://blogs.wsj.com/cmo/

2015/03/10/cable-tv-group-blames-subscription-web-tv-for-ratings-woes/ [https://

perma.cc/SR8J-64X7] (suggesting forty percent of recent ratings decline in 2014

and 2015 were attributed to subscriptions like Netflix, Amazon and Hulu).

258. See generally Shalise Manza Young, NFL ratings: Early Games See Big Bounce,

Primetime Game Slight Dip,

AHOO

! S

PORTS

(Sept. 10, 2018, 11:16 AM), https://

sports.yahoo.com/nfl-ratings-early-games-see-big-bounce-primetime-game-slight-

dip-151625983.html [https://perma.cc/6NGL-T3XJ] (noting viewer increase in

earlier scheduled games but decrease in nationally covered games).

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shown on roughly ten and a half percent of all United States televi-

sions, up twenty-three percent from 2017.

259

However, Fox’s NFL

coverage of the 4:00 PM week-one national game reached roughly

fifteen and a half percent of United States televisions, less than sev-

eral other week-one showings in the last decade.

260

The viewership

statistics for the primetime game were more surprising.

261

NBC’s

broadcast at 8:30 PM drew fewer viewers than it did in 2017 and

2016.

262

Meanwhile, ESPN’s Monday Night Football also saw a

drop in viewership compared to recent years.

263

The dip in ratings

has been attributed to political protests, blowouts in games, and

other scheduled programming.

264

But it is also attributable to a

general decrease in television viewership, a fact which supports why

the NFL should consider more streaming deals.

265

For example, consumers no longer find value in the traditional

cable TV bundling structure.

266

Bundling cable originally appealed

to consumers by giving them the ability to package numerous chan-

nels.

267

It also allowed networks to reduce transaction costs, result-

ing in an easier profit for networks.

268

However, bundling’s value

259. See id. (suggesting successful reach of NFL).

260. See id. (pointing out Fox’s coverage was shown in eighty percent of mar-

kets, due to blackout restrictions of other local games, and 15.7 percent is ranked

“seventh-most watched late-afternoon game since 2004”).

261. See generally Chris Cwik, ESPN’s ‘Monday Night Football’ Ratings Down After

Two Weeks,

AHOO

! S

PORTS

(Sept. 18, 2018, 1:40 PM), https://sports.yahoo.com/

espns-monday-night-football-ratings-two-weeks-174026627.html [https://perma.cc

/A7N3-F2UR] (reviewing primetime ratings of NFL games).

262. See Manza, supra note 258 (noting decrease from 15.8 percent to 14.4

percent this year).

263. See Cwik, supra note 261 (discussing past years and potential reasons).

264. See id. (listing President Donald Trump’s concerns with NFL, TV shows

“no longer pull massive ratings,” Monday Night Football’s Week 1 game resulted in

blowout, and Week 2 aired during seventieth Primetime Emmy Awards). “ESPN’s

Week 2 game had to compete with the Emmys . . . which also hit a new low for

ratings.” Id. (noting potential explanations for drop in viewership). For further

discussion of the Emmys, see supra note 6 and accompanying text.

265. See generally James Surowiecki, Bundles of Cable,

ORKER

(Jan. 25,

2010), https://www.newyorker.com/magazine/2010/01/25/bundles-of-cable

[https://perma.cc/V95Z-FMK3] (reporting on decreased viewership and less

cable subscribers). For further discussion of a general decrease in television

viewership, see infra notes 266–274 and accompanying text.

266. See Mathews, supra note 1, at 218 (suggesting TV bundling has played

large role for live sports and television industry); see also Surowiecki, supra note 265

(“[C]able TV has always relied on ‘bundling’ . . . .”).

267. See Mathews, supra note 1, at 218 (detailing how bundling channels

works).

268. See id. (suggesting consumers may perceive bundling as “a bargain” and

reduced costs due to “option value”); see also Surowiecki, supra note 266 (“It also

offers what economists call option value: you may never watch those sixty other

channels, but the fact that you could if you wanted to is worth something.”).

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has declined because of the loss of viewers and subscribers.

269

Nev-

ertheless, the cost of cable TV continues to surpass inflation rates

year after year.

270

The consistent rise in cable TV costs is directly

attributable to live sports.

271

This argument is based on the notion

that “live sport is immune to changes in viewing patterns[,]” giving

the sports leagues a monopoly-like grasp on the TV industry.

272

The leagues effectively have their say when they negotiate agree-

ments with networks, and they are able to demand increased prices

for their product.

273

This causes subscribers to pay more for bun-

dled TV programs, whether they actually watch sports or not.

274

The NFL’s decision to stream games for free, especially its deci-

sion to stream its first game in London, suggests that the league is

focused on using streaming to increase revenue and reach unserved

markets.

275

The NFL may have also been drawn to streaming be-

cause it enables sports leagues to “bypass the cable TV providers”

and offer the content easily and directly to consumers.

276

If the

NFL and other leagues opt to stream games, networks like ESPN

269. See Mathews, supra note 1, at 218 (relying on fact entire TV industry is

declining in growth).

270. See id. at 218–19 n.131 (citing In re Implementation of Section 3 of the

Cable Television Consumer Prot. and Competition Act of 1992, 31 F.C.C. Rcd.

11498, 11513 (2016)) (examining years between 2005 and 2015).

271. See id. (implying leagues’ “monopolistic position” controls prices in TV

industry); see also Matthew Garrahan, TV Networks Face Shaky Future in Changing Me-

dia Landscape,

. T

IMES

(Aug. 27, 2015), https://www.ft.com/content/15f65100-

4c9c-11e5-b558-8a9722977189 [https://perma.cc/P63K-K4HN] (“[S]port[s] is an

expensive business. . . . NBC Sports and Fox Sports are vying for the same rights as

ESPN. This has driven up the prices . . . a cost that is passed on to the cable and

satellite companies that pay to carry ESPN and, ultimately, to the consumers

. . . .”).

272. Garrahan, supra note 271 (suggesting live sports as cornerstone of broad-

casting industry).

273. See Mathews, supra note 1, at 219 (discussing leagues’ power to raise

prices).

274. See Surowiecki, supra note 266 (reporting on bundled packages includ-

ing channels which may never be watched).

275. See Mathews, supra note 1, at 220 (broadening NFL’s reach to markets

outside United States and areas affected by blackout restrictions).

276. See Greg Satell, How the Collapse of the Cable Business Model Will Bring a New

Era of Television,

ORBES

(Aug. 16, 2015), http://www.forbes.com/sites/gregsatell/

2015/08/16/how-the-collapse-of-the-cable-businessmodel-will-bring-a-new-era-of-

television/#3e83f3a413de [https://perma.cc/NQD4-J67Z] (calling streaming op-

portunities like this “over the top” as it bypasses cable TV). Television companies

profited from controlling distribution and determining which channels to carry.

See id. (“Rather than relying solely on advertising, they now had access to fees from

cable operators and, because the cable companies had near monopoly pricing

power, those fees could be substantial . . . .” (referring to

ICHAEL

OLFF

ELEVI-

SION IS THE

ELEVISION

: T

NEXPECTED

RIUMPH OF

EDIA IN THE

IGI-

TAL

(Portfolio 2015)).

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will be directly affected.

277

Agreements to stream content via other

sources have directly affected ESPN because ESPN is losing con-

tracts to broadcast those events.

278

Before leagues reexamine their

broadcasting contracts with television networks, they will need to

wait for their current contracts to expire.

279

Future contracts may include significant changes to how con-

tent is distributed.

280

For example, internet companies could be

the ones to gain from future sports broadcasting.

281

This would ex-

plain many of the mergers among large television, media, and in-

ternet service conglomerates, as well as their decisions to keep

content in-house.

282

Likewise, if consumers use internet services to

access content, then they obtain the material on-demand while

avoiding any copyright issues.

283

Other options could include a

pay-per-view structure as opposed to free or all-access content on

277. See Sullivan, supra note 232 (touching on live streaming’s impact).

278. See id. (claiming ESPN is no longer immune to changes in TV industry).

For an example of how ESPN is addressing the loss of broadcasts, see supra notes

231–237 and accompanying text.

279. See Michael Colangelo, Future of Sports TV: Digital, A La Carte and Increased

Competition,

IELDS OF

REEN

(Sept. 15, 2015), http://thefieldsofgreen.com/2015/

09/15/future-of-sportstv-digital-a-la-carte-and-increased-competition/ [https://

perma.cc/Y7J3-T3ZL] (explaining that NFL’s deal runs until 2022, NBA until

2023, and both NHL and MLB in 2021). For further discussion of current televi-

sion contracts with sports leagues and the dates in place, see supra notes 63–65 and

accompanying text.

280. See Mathews, supra note 1, at 221–22 (speculating about future of sports

broadcasting, end TV bundling, and potential a-la-carte programming on internet

services); see also Colangelo, supra note 279 (discussing a-la-carte programming).

281. See, e.g., Fischer, supra note 40 (reporting Disney’s ownership of ESPN,

acquisition of 21st Century Fox, and its majority stakeholder position of Hulu).

Competition over rights to air sporting events may become difficult between in-

ternet providers and television networks. See Kevin Draper, Is the Live Sports Rights

Bubble Finally Bursting?,

EADSPIN

(May 03, 2016, 6:10 PM), https://deadspin.com/

is-the-live-sports-rights-bubble-finally-bursting-1774516030 [https://perma.cc/

77M4-CQJV] (“Twitter is currently paying 1/45th of what CBS and NBC are paying

to broadcast NFL games. Nobody knows yet how to monetize the internet, and

rightsholders’ future profits in large part depend upon them being the ones to

finally figure it out.”).

282. See, e.g., Cecilia Kang & Edmund Lee, AT&T-Time Warner Deal Approval

Gets Justice Department Challenge,

N.Y. T

IMES

(July 12, 2018), https://

www.nytimes.com/2018/07/12/business/justice-department-plans-appeal-of-att-

time-warner-merger-approval.html [https://perma.cc/E4LH-YSN5] (examining

eighty-five billion dollar deal approved by federal judge to allow AT&T and Time

Warner merger, which companies view as “necessary to better compete against

tech giants like Netflix and Amazon”); see also Mathews, supra note 1, at 221–23

(hinting at internet service providers holding power for future broadcasting).

“[T]he emergence of internet streaming options will ultimately change the struc-

ture of sports broadcasting rights.” Mathews, supra note 1, at 221–23 (“[G]iven the

recent surge in internet[-]based streaming of video, including live events.”).

283. See Mathews, supra note 1, at 222 (pointing to consumers’ desires).

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the internet.

284

In a pay-per-view structure, consumers can pay on-

line any time they wish to view an event.

285

Regardless of whether a

pay-per-view structure would work, one idea stands out: consumers’

preferences are changing, meaning internet providers and cable

television have some adjustments to make.

286

IV. C

ONCLUSION

: E

MBRACE THE

AME AS

HANGES TO

TREAMING

Consumers are abandoning cable because internet services are

taking over and providing easy, commercial-free streaming op-

tions.

287

Sports leagues should stay ahead of the game and em-

brace streaming options with internet service providers, instead of

relying on legislation to prevent unauthorized streaming of live

sports content.

288

The SBA and copyright laws provide protection

to the leagues and attempt to prevent illegal streaming.

289

How-

ever, if leagues continue to cling to these laws to defend their con-

tent, then leagues may lose the consumers and viewers who are

abandoning traditional cable.

290

The fear of piracy is not a legitimate excuse for avoiding a tran-

sition to streaming services.

291

In recent court decisions involving

sporting events and live streaming, courts have issued favorable rul-

ings for the leagues.

292

Thus, the leagues’ fears of piracy should be

diminished.

293

Leagues and sports broadcast partners can still rely

on copyright law to prevent and recover when unlicensed parties

live stream an event.

294

Moreover, in the event an unlicensed party

284. See id. (suggesting future options similar to a-la-carte style).

285. See id. (discussing potential viewing structure).

286. For further discussion of consumers and changes in cable, see supra

notes 266–274 and accompanying text.

287. For further discussion of streaming options, see supra notes 7–52 and

accompanying text.

288. For further discussion of embracing streaming abilities compared to re-

strictive legislation, see supra notes 58–79 and accompanying text.

289. For further discussion regarding SBA and copyright law’s protection, see

supra notes 80–142 and accompanying text.

290. For further discussion of legislation and changes in traditional cable, see

supra notes 143–155 and 253–285 and accompanying text.

291. For further discussion of piracy and lessons from past issues, see supra

notes 207–229 and accompanying text.

292. See e.g., Am. Broad. Co. v. Aereo, Inc., 573 U.S. 431 (2014) (ruling in

leagues’ favor over streaming app Aereo); see generally Dittmore & Hutchins, supra

note 75 (detailing Aereo case).

293. For further discussion of piracy and lessons from past issues, see supra

notes 207–229 and accompanying text.

294. For further discussion of copyright law, see supra notes 106–141 and ac-

companying text.

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does live stream a game, the relevant league or sports broadcast

partner can still defend its right to its own content.

295

Finally, if leagues are concerned with ad dollars, they should

focus on the consumers.

296

The money always comes from the con-

sumers, and today’s consumers are focused on easy access to con-

tent through live streaming.

297

Streaming is also a reliable source

of future income for sports leagues, because consumers and fans

continue to embrace technological changes in streaming.

298

The

success of the numerous companies already streaming and control-

ling their own content confirms the benefit of embracing

change.

299

Leagues should follow their example and adopt live

streaming as an alternative to the traditional methods of sports

broadcasting.

300

Gregory Bailey*

295. For further discussion of controlling content, see supra notes 35–49 and

accompanying text.

296. See

C S

PORTS

UTLOOK

, supra note 8, at 10–13 (suggesting consumers

want to control the content and competition with streaming devices will increase

ad revenue).

297. For further discussion of consumers and ad dollars following streaming

services, see supra notes 253–285 and accompanying text.

298. See generally

C S

PORTS

UTLOOK

, supra note 8 (predicting sports mar-

ket through 2022 focusing on sports media rights).

299. For further discussion of controlling content, see supra notes 35–49 and

accompanying text.

300. For further discussion of future streaming services and success, see supra

notes 7–52 and accompanying text.

* J.D. Candidate, May 2020, Villanova University Charles Widger School of

Law; B.A. in Philosophy, George Washington University, 2015. I would like to

thank my family and friends who have always encouraged and supported me

throughout my educational pursuits.

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