Zuffa, Google, and the Digital Millennium Copyright Act
CagePotato.com recently reported that Zuffa sent a "cease and desist" letter to Google demanding that Google stop linking to websites illegally streaming UFC events. The article also states that Zuffa has sent similar notices to "websites that use unlicensed copies of Getty Image photos from the UFC website, regardless of whether or not attribution is given."
A lot has been written about this issue, and the focus has been on the fact that because Zuffa's letter was re-published and lists numerous websites that illegally stream videos, the approach may have backfired by informing the public of plenty of ways to steal UFC content. This post is meant to provide additional background on the underlying law and clear up some common misconceptions that have appeared in other articles about this issue.
First, the sending of a letter to Google about links in its search results is very different than sending letters to websites that are using unauthorized UFC photos. Even if such websites did provide attribution, they are still engaging in copyright infringement. Although there is a "fair use" defense to copyright infringement, providing credit to the original photographer and/or posting the photo on a non-commercial website does not entitle one to the defense.
Second, although the letter to Google contains a demand, it is not what attorneys would commonly call a "cease and desist" letter because Zuffa is not really accusing Google of unlawful conduct. Rather, it is providing notice under the Digital Millennium Copyright Act (DMCA). Google actually provides an explanation on its website as to how to send it such a notice. Google does this because the process (and the subsequent removal of offending links) allows it to take advantage of a "safe harbor" provision in the U.S. Copyright Act. 17 U.S.C. Section 512(d) says that an internet "service provider" that provides "information location tools" cannot be held liable for copyright infringement if it follows the DMCA notice and take down provisions. Although Google is not a typical "internet service provider," the definition of the term in 17 U.S.C. Section 512(k)(1)(B) is broad and includes a "provider of online services" that would likely encompass Google and other entities like its subsidiary, YouTube (which also invites DMCA take down notices).
Justin Klein, The Fight Lawyer, has a nice piece at MMAPayout.com explaining how the notice and take down process played out in this particular case.
Although Google invites the DMCA notices, it also provides them to Chilling Effects. I suspect this is, at least in part, to cut down the number of notices it receives. Zuffa and/or companies hired to serve as its agents in providing DMCA notices have sent at least 14 such notices to Google since October 1, 2010. It remains to be seen whether Zuffa will take a step back in light of the re-publishing of its notice on mainstream MMA sites.
Google has made the reasonable business decision to take advantage of the DMCA safe harbor rather than spending time and money in court, but it would be fascinating to follow any resulting litigation if Google just refused to bow to Zuffa's demand. Because Google does not display the infringing content itself, Zuffa would have to argue that Google is engaging in "contributory infringement." That theory requires a showing that the defendant "induced" or "materially contributed" to the infringement of another.
I know of no case that holds that providing a hyperlink can be a "material contribution" to infringement. In the real world, it's like telling someone where they can buy a pirated CD as opposed to making the illegal copies or holding a swap meet where the copies are sold. (And, yes, defendants have been held liable in the latter swap meet example.) I don't think providing such information is likely to be deemed contributory infringement, but, if it were, it could lead to a monumental change in the way search engines function--perhaps another reason that Google is going the safe harbor route.
If Google ever did pick the fight, however, Zuffa might finally meet its match. Although the UFC's parent company is worth an estimated $1 Billion, Google's market cap is $189 Billion.
