A recent injunction granted by the High Court means that the UK’s main Internet Service Providers (ISPs) will now be forced to shut down any server thought to be providing access to illegal streams of Premier League matches. The action, brought by the Football Association Premier League (FAPL) means that BT, Sky, TalkTalk and Virgin will now have to block any server thought to be infringing the FAPL’s copyright. The order was in force for the last two months of the 2016/2017 Premier League season (see here for more) and will remain active for the duration of the 2017/2018 season.
Why was the order introduced?
Earlier cases brought by the FAPL had sought to assert the exclusive rights of its licensees to broadcast live matches by blocking access to infringing websites (Football Association Premier League Ltd v British Sky Broadcasting Ltd). However, the current shift of focus from infringing websites to rogue servers seems to recognise the new ways in which copyrighted material is now being distributed.
While access to illegal streams had previously involved the use of a computer-based web browser, the growing availability of free apps and pre-loaded set-top boxes has meant that accessing copyrighted content without payment has never been easier. The outdated method of blocking illegal websites had become increasingly ineffective in the struggle with online piracy due to the fact that the point of access for many users has shifted from browsers to apps and hardware.
A lack of understanding of the law has further exacerbated the problem. Despite high awareness among the UK public that downloading and viewing content from file sharing platforms is illegal, many consumers believe that streaming the same content via a modified set-top box is a lawful alternative. One of the aims of the order was, therefore, to provide clarification to consumers on what constitutes online piracy by shutting down the sources of the illegal material.
In addition, many servers had been moved to offshore hosting providers. This meant that responses to requests by the right holders to remove the infringing material were received late if at all. Naturally, this delay had created problems in a live sporting context where takedown requests would need to be actioned well within the one hundred and five or so minutes required to broadcast a Premier League football match.
The FAPL was concerned that these issues around copyright infringement were responsible for a decline in the number of football fans signing up for paid subscription services. This would, they argued, lead ultimately to the devaluation of broadcasting rights for Premier League matches, which could in turn have a disastrous impact on the league, and sport in general. Since the streaming servers represented the crucial link in the distribution chain of copyrighted material, the FAPL argued that targeting them specifically would result in a total disruption to the supply of illegal coverage – regardless of whether the user was accessing it via an app, a media player or internet browser.
What is the order?
Using proprietary finger-printing software, the FAPL will now compile a weekly list of ‘target servers’, i.e. those that it believes are linking users to infringing streams. ISPs will now be obliged to block their customers from access to any of these listed servers.
This block, however, will only be in place for the time the live matches are being broadcast. Also, the list of target servers will be re-set every week meaning new infringers can be added to the list, while blocks can also be lifted on those who are no longer a source of infringing footage. These constraints aim to ensure that a balance exists between the rights of the servers’ owners and those of the FAPL.
What was the legal argument?
The power of the High Court to grant the injunction against the defendant ISPs comes from s.97A of the Copyright, Designs and Patents Act (1988). According to this, the court may take action if the defendant is a ‘Service Provider’ by the definition given in Regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002. Having established this, the High Court asked whether or not there was an infringement of FAPL’s copyright and, if so, whether the ISPs had knowledge that they were providing the internet access through which these copyright infringements were being made.
Arnold J, sitting in the Chancery Division, held that these criteria were met, adding that the main question was whether the court’s granting of an injunction against the ISPs would be proportionate to the aim of protecting intellectual property. He considered that the injunction would since it would neither impact on the defendant ISPs’ services to their existing customers, or their ability to carry on business. In addition, as it would not be too costly or complicated to introduce, it also satisfied the other requirements for a proportionate solution.
What’s the outcome for copyright?
The Premier League has described the ruling as a ‘game-changer’, as it will now be better equipped to enforce the rights of its licensees Sky and BT, who had paid the FAPL £5 billion to broadcast live footage of matches. The ruling also has broader implications for the future of the illegal streaming of live events in general.