Can You Sue For Copyright Infringement Before It’s Actually Happened?

A few months ago, we wrote about a lawsuit filed by a boxing promoter that sued UStream for not taking down streams of a boxing match fast enough. The promoter claims that because it warned UStream ahead of time to block these streams, it should have been faster about deleting them. That case is still ongoing and headed to trial, but in another story of boxing and streaming, we now have an attempt at creating a legal violation of pre-crime copyright infringement. It appears that HBO and Showtime have decided to pre-sue two sites that it claims are planning to stream the big Floyd Mayweather/Manny Pacquiao boxing match. If you’ve somehow been under a rock, this fight is getting a ton of publicity and is set to happen this weekend.

Yet, the two big broadcasting companies that will be showing the fight, Showtime and HBO, feel that they can sue ahead of time, according to the lawsuit [pdf] — which raises a ton of legal questions. And it seems that many of those questions could be answered with a basic “Uh, no, you can’t do that.”

First off: can they sue over a copyright on content that simply doesn’t exist yet? HBO and Showtime say, no problem, that they’ll have it eventually:

Plaintiffs intend to register the copyright in the Coverage, as joint authors, within three months after May 2, 2015.

But then there’s the bigger question: can these websites be sued for breaking the law some time in the future? It seems to raise issues a la “pre-crime” and Minority Report. Yes, the sites make it pretty clear they’re going to try to stream the fight, but what’s the actual infringement before it happens? You can’t sue over theoretical infringement. You have to show actual infringement. But HBO and Showtime seem to have made up a new form of copyright infringement: “anticipated infringement.”

Defendants’ anticipated infringement will cause Plaintiffs severe and irreparable harm.

This leads to odd statements in the lawsuit about future events that simply haven’t happened yet:

Plaintiffs are informed and believe and on that basis allege that Defendants will materially contribute to direct infringement of their rights in the Coverage by others, including without limitation third parties from whom Defendants acquire the infringing stream and third parties who use other websites to redistribute the infringing stream from Defendants’ websites.

Perhaps it doesn’t matter in the grand scheme of things: on Saturday, the event will happen and these sites will or won’t stream the boxing match. Maybe the lawsuit scares them off and they don’t stream the match — and then the lawsuit can be easily dismissed. Or, if they do, HBO and Showtime amend the complaint to move the future tense to the past tense and all is good. Assuming HBO and Showtime believe this is the case, then the lawsuit serves as something of a possible deterrent to the sites, showing that HBO and Showtime are so serious about potentially suing them, that they already have. Still, it seems somewhat questionable to sue over infringement that everyone readily admits has not yet happened in any way, shape or form.

And, don’t get me started on the question of whether or not merely embedding a stream hosted somewhere else should be seen as direct infringement, but that’s a discussion for another day…

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