Two popular streaming sites going dark last week is a reminder of the problematic framework for content creators who distribute live sports.
Methstreams and Crackstreams are known for providing free streams of NFL, NBA, UFC and other content that would otherwise require viewers to pay. It’s believed that millions of fans use these and similar websites. Even NFL players and prominent journalists have apparently used them. Now that Methstreams and Crackstreams are offline, some users are expressing aggravation over their loss. Some are also identifying alternative websites that seem to provide the same service.
The challenge for content creators is twofold.
First, there’s a market for fans who can’t or won’t pay to stream games and who aren’t deterred by the illegality of pirating. One recent study found that about 11% of U.S. adults admit to pirating live sports, TV or movies. About half said they turned to illegal methods because the cost to stream, including through a paid subscription or pay-per-view fee consistent with a licensing deal, was too high. Another survey found that more than one in four people admit to unauthorized streaming of live sports, with NFL, NBA and MLB games the most likely illegal streams. That study also noted nearly two-thirds of millennials (people born between 1981 and 1996) acknowledge having watched sports through unofficial streams.
Illegal streaming might seem like a low-level misdeed and not one that will lead to meaningful consequences. While illegal streaming operators have been arrested and prosecuted, consumers who use those streams aren’t being hauled into jails. Plus, leagues are multibillion dollar entities with billionaire owners whose lives aren’t noticeably impacted by a pirated stream here or there.
The problem with that line of thinking is that it is shortsighted. The reality is far more people are impacted by the loss of revenue caused by pirating, which for the global sports industry the Harvard Business Review estimates at around $28 billion a year.
Take players. Their unions have bargained for a share of league revenues that are heavily impacted by television revenue. When TV revenue is lower because of pirated streams, the salary cap is set lower and related restraints on player salaries are more severe than what they ought to be. It’s not just pro athletes, either. If the House settlement is approved, some D-1 college athletes will get a cut of broadcasting revenues.
Ordinary Americans also work for league media arms such as the NFL Network, which last year conducted layoffs, or their partners, including regional sports networks that are struggling to keep pace. Hosts, producers, account executives, camera operators, sound editors and many other jobs can be eliminated when times are bad, including because subscription and advertising revenue drop when fewer people opt to watch lawfully. The perception that pirated streaming is a victimless offense ignores the realities of broadcasting operations and the vulnerability of people employed by those operations.
The second challenge for content creators is that U.S. copyright law and the copyright laws of many other countries fail to provide the ability to symmetrically stop or swiftly prevent pirated content. These limitations are especially problematic for businesses with intellectual property in live sports. The value of live sports content usually drops considerably after it is broadcast, meaning an illegal stream that remains available even for minutes is economically harmful. That’s not surprising if you think about it. Once something big happens in sports, numerous clips of it appear on social media for users to see for free.
The Digital Millennium Copyright Act of 1998 is the relevant U.S. law. When President Bill Clinton signed the bill into law in October 1998, streaming existed but it wasn’t a popular method of delivering content. These were days of dial-up modems and wired connections, when people used cellphones only to make and receive calls. Back then, leagues had partnered with companies like Audionet and Starwave to stream footage of highlights and limited other content. But it wasn’t until bandwidth, internet speed and accompanying technologies improved in the latter half of the 2000s that streaming took off and became a major delivery option for content creators.
Statutes are based on what is known at the time they become law and often struggle to anticipate what’s to come. That has proven true of DMCA. In 1998, the concept of illegal streaming of live sports was not a major concern. Many of us who were around then remember the internet as fairly slow moving and a way to read about, as opposed to watch, sports; the internet was more like an online newspaper than another way to watch TV.
DMCA places the burden of copyright enforcement on content creators, meaning they must identify and stop infringement, or it could continue indefinitely. DMCA accomplishes this goal through a notice and takedown system. Once a content creator notifies online and internet service providers (OSP) of pirated content, or once the provider obtains knowledge or awareness through other means, the provider must “act expeditiously to remove or disable access to the infringing material.”
The word “expeditiously” means promptly or quickly in most dictionaries, but for purposes of complying with DMCA, there is no “uniform time limit” for providers to undertake expeditious action. Instead, expeditiously varies on a case-by-case basis. DMCA grants a safe harbor to service providers, which include Facebook, YouTube, Twitch and similar platforms that enable streaming, from liability so long as they comply with these requirements.
Leagues and media partners have complained this model is ill-equipped for modern-day realities, particularly with streaming becoming more and more prevalent. They argue placing the content creator with the responsibility of alerting providers is inefficient. It has led to a “whack-a-mole” model where content creators must constantly search for streams and try to whack them.
But even then, there is a wait before action and the wait is damaging. As UFC executive vice president and general counsel Riché T. McKnight stated in his Congressional testimony in 2023, “UFC’s experience is that many OSPs frequently take hours or even days to remove pirated content posted during or immediately after UFC’s live sporting events.” Some pirated videos also remain online despite takedown requests.
McKnight and others have proposed legal reforms that would modernize remedies available to content creators. They include an obligation on the part of OSPs to require more stringent verification measures before an account can post content. Another idea is to compel OSPs to block accounts at issue in takedown notices from being able to post new content. Although some in Congress are receptive to these ideas, they remain merely ideas.
There are opponents to proposed changes, with “Big Tech” the most prominent voices of caution. Service providers are wary of costs and practicalities that would come with new legal duties to police. They have also defended the notice-and-takedown arrangement as effective and protective of speech.
Two years ago, the open markets trade association Computer & Communications Association warned the U.S. Patent and Trademark Office that “the imposition of proactive enforcement obligations would be less effective, would inevitably negatively impact free speech and legitimate trade, and would introduce untold unintended consequences—digital services would be disincentivized from innovating and would do only what the law required, benefiting no one.”
Perhaps Big Tech’s viewpoint will change as major streaming platforms are now in the live sports space. Netflix, Amazon Prime, Apple TV, YouTube have all signed deals to distribute licensed live sports and have an obvious stake in seeing piracy not undermine those deals. It wouldn’t be surprising to see more, and a broader range, of stakeholders urge Congress to consider reforms.
Time will tell. We’ll be watching, legally of course.
Jacob Feldman contributed to this column.
