A high court decision in March granting the Football Association Premier League (“FAPL”) an injunction has marked the latest stand by the Premier League against illegal streaming of matches in the UK. The judgment is both a response to, and made possible by, technological advances and allows for real time blocking of streams accessed via apps and Kodi Boxes which are growing sources of broadcasting illegal content.

Background

Licensing of rights in football is a multi-billion pound industry and as such, licensors and licensees have an obvious interest in taking steps to protect those rights. In March for example, BT Sport beat Sky to the exclusive rights to show European football until 2021 in a deal worth around £1.18 billion.

Illegal streaming of sports is becoming increasingly popular in the UK. In July 2013, another FAPL action was brought against First Row Sports, a website designed to broadcast illegal streams of football and other sports. In that judgment, also delivered by Mr Justice Arnold, it was noted that:

“The scale of FirstRow’s activities is very large. There are a large number of links listed on the site at any one time. FirstRow was ranked by Alexa as the 268th most popular website in the UK in January 2013 and the 239th most popular in April 2013. To put that in perspective, FirstRow was on that basis more popular, in January 2013, than both www.lastminute.com and www.ft.com. In April 2013 alone, FirstRow received 9.98 million unique user hits worldwide.”

Since then, a significant development in illegal streaming has been the use of Kodi Boxes which is a catch-all term for any TV box that is capable of being connected to the internet and is usually designed to be used with the ‘Kodi’ application (in most cases the boxes are pre-loaded with the app). The Kodi app allows users to access streaming servers that broadcast copyright content such as sports, but also other paid for services such as TV and film. This means that users are moving away from streaming content from web browsers, in favour of an easier to use service that mimics subscription services like Sky and BT.

Legal Claim

FAPL was the Claimant (it is the owner of copyright in recordings of each Premier League match, including the footage, ambient sound, action replays, graphics and on-screen logos), bringing a claim  against six Defendants – the six main retail internet service providers (“ISPs”) in the UK – for an order that was unopposed by the Defendants. In fact, five of the Defendants actively supported the order. It is important to note that the ISPs in some cases had a very demonstrable interest in supporting the order, since they are also the exclusive licensees of rights to Premier League content.

FAPL sought a type of injunction called a ‘blocking order’ under section 97A of the Copyright, Designs and Patents Act 1988. Section 97A (1) provides that:

“The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.”

The Problem

In his judgment, Mr Justice Arnold outlined what he saw as the key elements that have exacerbated the problem of illegal streaming in recent years.

The first was that traditional website streaming has become less significant by comparison to apps. A large part of this is the fact that these apps are increasingly easy to find, install and use. The judge commented that the high number of boxes being bought and sold may be linked to the fact that they provide users with higher quality streams than traditional browser streams, but also that there is a misconception among the UK public that these boxes are lawful. Although not referenced in the judgment, the recent case of Malcolm Mayes, the man fined £250,000 for selling these app loaded boxes to pubs, is relevant in this regard. Finally, the judge considered the significance of the trend for streaming servers to be moved to offshore hosting providers who “do not cooperate with rights holders’ requests to take down infringing content either at all or in a timely manner”.

How the Order Works

A contractor engaged by FAPL has, over a number of weeks in this 2016/17 season, monitored illegal streams using innovative ‘proprietary video fingerprinting technology’ to compile a list of ‘Target Servers’. From this list, a subset of streaming servers has been identified that FAPL and its contractor:

• “reasonably believe…has the sole or predominant purpose of enabling or facilitating access to infringing streams of Premier League match footage”; and

• “must not know or have reason to believe…is being used for any other substantial purpose”.

A historic problem with blocking orders has been timing. As mentioned above, getting the content removed ‘in a timely manner’ is crucial since each match only lasts for 90 minutes. That means that the server needs to be identified (or pre-identified) and blocked within a short space of time.

New technology allows FAPL to identify infringing streams in “close to real time” during matches so servers can be identified almost immediately. The ability to enable automatic blocking that responds to changes in IP addresses means that FAPL and the ISPs can respond quickly without incurring the high costs associated with monitoring. Automatic blocking can be enabled during match time only, which mitigates the risk of such a blocking order being disproportionate. The order also builds in a degree of flexibility, as the list of Target Servers can be changed each game week to allow for the identification of new servers.

Other safeguards were also built into the order, namely that notice must be sent to each hosting provider in the week its IP address is subject to blocking, following which the operator of the server can apply to vary or set aside the order. Finally, the order is only for the final weeks of the Premier League season (operating between 18 March 2017 to 22 May 2017) which means that the courts, rights holders and ISPs can ascertain how effective and proportionate these types of blocking orders are at the end of the season.

Why an order should be made

In making his decision, Mr Justice Arnold highlighted the importance of balancing the rights of the Claimant with the risks of impinging the freedom of the Defendants to carry on their business, as well as the freedoms of internet users. He found that the enhanced technology detailed above minimises such risks and, in any event, FAPL’s rights must be protected. Mr Justice Arnold made it clear however that the freedom of internet users to receive information “plainly does not extend to a right to engage in copyright infringement.”

A key factor in the judge’s decision making was the potential effectiveness of the blocking order. By targeting the streaming servers, one blocking order has the potential to disable multiple websites and streams at the same time. Further, previous blocking orders have had demonstrably positive effects in respect of decreasing piracy rates.

He also cited the importance of the Premier League in supporting sport in the UK, through the money it returns to football clubs, sports facilities and the wider sporting community, as well as the contributions to the wider economy and the potential deterrence such steams may have in attending matches.

Comment 

This judgment marks a significant progression in the protection of copyright material. Licensors and licensees, like FAPL and the ISPs, invest heavily not only in the creation of their content, but also in its protection. Monitoring infringing streams, often through the use of third parties, adds to the cost of developing or acquiring the rights. Added to this, rights holders often enter into agreements with companies like Youtube and Twitter to ensure that content is removed, which itself creates a plethora of supplementary issues. Sports Shorts previously considered, for example, the way in which the defence of ‘fair dealing’ is used to circumnavigate the law of copyright in the sports domain. The reality is that the content in question is an incredibly valuable asset and therefore investment in its protection remains a top priority.

Simon Grossobel authored this post.