BY: ANTHONY DEFRANCESCO

The UFC recently stated that it will aggressively pursue legal remedies against Greenfeedz.com, a streaming website that was recently shut down, and also against the individual users of Greenfeedz who illegally streamed copyrighted UFC materials.[1]  While the UFC has always had an aggressive, litigation-based approach to internet piracy, the true effectiveness of such an approach is difficult to measure. Now the issue is whether pursuing legal action against individual users who illegally stream UFC pay-per-views over the Internet is the best course of action for the organization.

As UFC Chief Legal Counsel Lawrence Epstein recently told MMAjunkie.com, “[w]e believe that we’ve got an obligation to go out there and try to protect the intellectual property and protect both our rights and the rights of our fighter-partners.”[2] In Epstein’s eyes, the UFC would not be suing its own fans because, to him, individuals who illegally stream pay-per-views (and effectively steal from the company) are not true fans. However, as Mr. Ben Fowlkes of MMAfighting.com notes, “[w]hen Epstein says that those people aren’t fans, what he really means is they aren’t the fans the UFC wants.  [People who aren’t fans] probably wouldn’t be sitting in front of a laptop on a Saturday night watching a UFC event, whether they paid for it or not.”[3] And here is where the problem arises – will the use of litigation against individual actors provide the proper restitution for the UFC and deter individuals from illegally streaming fights? Or will this strategy backfire against the company and turn would-be fans into disgruntled individuals who were once on the wrong end of a UFC lawsuit earlier in their lives?

As an avid UFC fan and a law student, I would like to think that I understand what is going on in the minds of the individual users and in the mind of the organization itself. On the one hand, I know what it is like to rely on student loans while being adamant about not missing a single pay-per-view (“PPV”) event (and I am sure that a number of my friends can attest to my strange, unrelenting mission to be in front of a television every other Saturday night), so I can sympathize with fans who want to watch the $45-$65 PPV event, but cannot afford to purchase it. On the other hand, after a few years of legal education focused on intellectual property law (and a stint working in the legal department at World Wrestling Entertainment), I understand the driving forces and the goals behind the UFC’s actions. Piracy is illegal, it can be detrimental to any organization, and it is often tied to varied criminal enterprises. That being said, I am not convinced that suing individual users is the solution to this pervasive problem.

There are a number of alternative Intellectual Property enforcement mechanisms and strategies (some of which I have discussed in my earlier PIPSELF blogs) that the UFC has not fully utilized. I have been a loyal fan for many years now, but I have not seen advertisements discussing the dangers of online piracy and the effects it may have on the organization and its fighters. While I am not a producer, I can think of a few ways that the company can leverage popular fighters to educate the public and draw sympathy from those who have pirated UFC content or may do so in the future. The UFC may also want to consider who exactly “the individual users of Greenfeedz whose user information was obtained” may be. Ben Fowlkes of MMAfighting.com suggested that many of these online pirates may very well be 19-year old college students who want to see a UFC event and either: 1) cannot afford to purchase a PPV event; 2) do not have access to PPV content; or 3) cannot legally go to a bar to watch the fights, and ultimately decide to stay home and illegally stream the PPV event from a computer. When one of these kids gets sued a few months later, what will the end result truly be?

What’s going to happen when that kid graduates, goes to work, and finds a job that will allow him to enjoy luxury expenses like pay-per-views? You think he’s going to become a loyal customer of the company that sued him back when he was struggling to buy books? You think he’s going to buy a ticket to see a UFC event when it comes to his city? You think he’s going to buy merchandise or watch free events or patronize the UFC in any way after that experience? Maybe. Or maybe he’ll hold a little bit of a grudge. You know, for the rest of his natural life.[4]

Whether or not these types of young Americans are the types of fans that the UFC wants now, they may be the types of fans that the organization needs in the future. Sure, there will always be those who stream out of greed rather than necessity but, by pursuing broad legal action, the UFC may be taking the wrong long-term approach. I completely agree with the strategy of going after major distributors of illegal content, but it becomes a shaky proposition when you
begin pursuing individual users, especially when you are the leading organization in a sport that is still growing and is working to break into the main stream consciousness. I would argue that instead of pursuing legal action against these individuals, the company should increase efforts to educate and try to help increase affordable access to PPV events for those who need it. For example, the UFC could create a “UFC College” component that is tasked with educating young men and women about the dangers of piracy while promoting health, physical fitness and well-being through martial arts (if the company decides to do that, I am officially requesting a job as of this very moment). In terms of providing access to live events, I would suggest that the company could give students discounted rates on PPV events after confirming their educational institution, provide venues where students could watch live events, or consider other options. By taking this type of approach, the UFC would be educating and nurturing a loyal fan base of future, working adults instead of running the risk of turning the youth off to the company in an effort to deter others.

I myself am undeniably passionate about the sport of Mixed Martial Arts (“MMA”), and I always find a way to watch the live fights and to spread the cost of doing so. If I am being completely honest, the initial reason why I did not stream UFC events over the Internet was probably a simple fear of getting computer viruses from those scary websites that hosted the links. However, as my understanding and appreciation of MMA (and the law) further evolved, my reasons for avoiding illegal streaming began to change. I soon discovered that some UFC fighters receive a cut of the PPV sales for a given event. I realized that individuals who illegally stream fights are in effect taking money away from the fighters who are putting their hearts and bodies on the line in the cage in order to put on a show and achieve their athletic goals. I could not, and cannot, justify cutting the corners in order to watch a UFC event while knowing the not-all-too-distant repercussions of my seemingly harmless actions. But, what is the harm in one person streaming a UFC PPV event, you ask? Ask Garrett Hardin, an American ecologist known for The Tragedy of the Commons essay. The tragedy of the commons is “a dilemma arising from the situation in which multiple individuals, acting independently and rationally consulting their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyone’s long-term interest for this to happen.”[5] To put it another way, if I decide that I don’t want to recycle, it will have a minimal impact on the environment. But, if everyone in the world decides to do the same thing, the environmental impact would be devastating. This logic is quite apparent in our modern understanding of environmental and energy conservation issues, and the same logic can be applied to intellectual property law. For example, if every individual acted independently, rationally consulting his or her own self-interest, and streamed PPV events in order to avoid paying a fee, the UFC would lose its main source of revenue, the fighters would flee, and the premiere mixed marital arts organization of our time could very well collapse faster ancient Mayan society. Now, I know this may sound a bit extreme, but it makes a point: individual actions have a greater effect on the world at large. This is the type of message that needs to be articulated to the 19-year old student streaming a UFC PPV event from his dorm room. Education and access need to come before retributivism and deterrence.

Ultimately, I understand the UFC’s reasons for pursuing legal action in these cases; and I am well aware of the detrimental and cumulative effects of online piracy. However, there is a great deal to consider from business, legal and social
perspectives before pursuing individualized lawsuits of this nature. It is my hope that the organization considers the use of various alternative measures before moving forward. I am even offering my humble services in the effort.
Regardless, I have faith that the company will make the right decision(s). I respect its leadership, I am in awe of what they have done over the past eleven years, and I genuinely look forward to their continued growth and prosperity in
the years ahead.