Following a coronavirus hiatus, the NBA returned to action on July 30, 2020. In a logistical miracle, the league successfully created a “bubble” at the ESPN Wide World of Sports Complex in Orlando, Florida where teams, media personnel and support staff could operate safely. Following eight regular season games, the NBA post-season began on August 17, 2020. As a life long NBA fan, this is one of the most exciting post-seasons I’ve ever seen. Four of the series have gone to seven games. In two of those, the Denver Nuggets overcame 3-1 deficits to win. And, in a surprise to everyone, the fifth-seeded Miami Heat, with only one true star in Jimmy Butler, came out of the Eastern Conference after suffering only four losses en route to the Finals, steamrolling Giannis Antetokounmpo’s first-seeded Milwaukee Bucks along the way.

Despite the excitement, ratings are down. There are many reasons people to point to for this. For one, the condensed post-hiatus schedule saw multiple playoff games broadcasted in the middle of the afternoon, eastern standard time. Also, some have speculated that fan apathy toward the league’s vocal social justice stance, following the killing of George Floyd, has affected ratings. Additionally, the hiatus has put the NBA in head to head competition with the NFL, the undisputed ratings leader of American professional sports. But one factor in the NBA’s ratings decline that has not gotten much attention is the persistent and growing popularity of illegal internet streaming.

Let’s face it, cable is expensive. The phenomenon of “cord cutting” among people of all ages, but especially young people, is well known. Many of my peers would not consider paying for cable service at this point, or perhaps ever, but still want to watch live sports. High quality live streams of sports events are now easy to find on the Internet and so, of course, many people avail themselves of them. According to MUSO, a piracy data company, humans made about 363 million visits to sports piracy websites in January 2019 alone. This has surely increased since then.  And because NBA viewership skews younger anyway, this poses a particularly difficult problem for the league. So what can be done to stop the streams?

It’s not an easy fix. Streamers run incredibly complex, international operations that are difficult to disrupt permanently. The task is made all the more difficult by a system of copyright laws that struggles to keep up with the rapid development of digital technologies.

One of the most popular sites for people to find illegal streams is Reddit. While you cannot watch the streamed broadcasts directly on Reddit, the website hosts several subreddits where users can find links to websites that do host illegal streams. The most popular of these subreddits for finding NBA games was r/NBAstreams. However, following the 2018-19 season Reddit banned the subreddit, citing a spike in Digital Millennium Copyright Act notices.

 For context, the Digital Millennium Copyright Act (DMCA) was signed into law in 1998. People still connected to the Internet by dial-up in 1998, and high definition streams of live sports were still science fiction. Despite the Act’s age, it does address some contemporary problems. The Act creates liability for providers who “transmit potentially infringing material over their networks.” S. Rep. No. 105-190 at 2 (1998). However, it also creates “safe harbors” that allow providers such as Reddit to escape liability if they meet certain criteria. These include maintaining a repeat infringer policy and establishing mechanisms that allow copyright owners to identify and protect their work. It also requires that if the host becomes aware of infringing content, they must act quickly to remove it. Viacom Int’l, Inc. v. YouTube, Inc., 617 F.3d 19, 27 (2012). As such, copyright holders are allowed to file notices under the DMCA alerting platforms that they are hosting infringing content. Reddit, for their part, generally complies with these notices, taking down infringing posts and, if necessary, entire subreddits. This is what occurred with r/NBAstreams.

This statutory scheme does a relatively good job of incentivizing platforms to crack down on infringing content in order to protect themselves. However, in terms of streaming, platforms like Reddit are only hubs from which users access other websites. So what can be done about those?

Under current United States law, not much. The DMCA does not equip law enforcement with the tools they need, which is unsurprising given its age. Congress did attempt to pass more contemporary legislation. The Stop Online Piracy Act (SOPA) would have extended law enforcement’s reach in the digital sphere, and would have expanded the liability for tech companies. Under SOPA, platforms like Google, Facebook and Reddit would have been liable for content their users upload as facilitators of copyright infringement without the defendant-favorable “safe harbor” provisions of the DMCA. Perhaps more importantly, SOPA would have targeted the income of these companies. Under the bill, payment and advertisement network operators would have been obligated to cut off services to allegedly infringing websites within five days of receiving a notification. While this would have given the U.S. the ability to restrict foreign websites, a capacity it does not have under the DMCA, it would have created immense difficulties for American technology companies. As such, Silicon Valley mounted a vigorous defense against the bill and it was never enacted into law.

Today, copyright holders like the NBA expend vast resources trying counter streamers, but, without an adequate legal framework, they’re largely relegated to playing whack-a-mole. Shut one website down and the same operator, hiding behind a labyrinth of VPN’s and IP addresses, sets up shop under another domain name. Given the international scope of the problem and a powerful tech lobby opposed to solutions with teeth, it seems unlikely copyright holders will gain the upper hand against illegal streamers any time soon.

For the time being, the NBA is enjoying record revenues from their television deals as their broadcasts are some of the few remaining must-see television events. However, if ratings continue to decline in the face of rampant, ever-sophisticating piracy, one wonders just how long the good times can last.