This blog looks at the High Court decision in The Football Association Premier League Limited v British Telecommunications PLC and Others [2017] EWHC 480 Ch giving the FAPL the power, by virtue of a 'live blocking injunction', to block access to live streams of Premier League matches as the matches are in progress.
New technology is being introduced to the Football Premier League, but it's not the sort of video technology supporters have been asking for to help rule on contentious refereeing decisions.
Following a recent High Court decision (The Football Association Premier League Limited v British Telecommunications PLC and Others [2017] EWHC 480 Ch), The Football Association Premier League Limited (FAPL) will now have the power, by virtue of a 'live blocking injunction', to block access to live streams of Premier League matches as the matches are in progress.
Unlike previous blocking order (such as the one issued in the Cartier case), this will be achieved by the internet service providers (ISPs) blocking access to the servers hosting the streams rather than the website where the streams can be viewed. The blocking will be 'live' and will only occur for the duration of the match in question. What makes this even further removed from the previous blocking orders is that the blocking will be done without reference to the court, but will be at the discretion of FAPL and its anti-piracy contractor (on the basis of criteria set out in the order discussed below). The order is due to expire in May (at the end of the football season) when its effectiveness will be reviewed and potentially a new order issued in time for the new season in August 2017.
FAPL's application
The application was brought by FAPL against BT, EE, Plusnet, Sky, TalkTalk and Virgin Media. The term 'against' is being used very lightly as all of the ISPs carry the FAPL's content for public consumption and therefore have a vested interest in illegal streams being tackled. This is shown by BT, EE, Sky and Virgin Media approving the request for the content-blocking to be extended, whilst TalkTalk and PlusNet simply did not contest it.
FAPL's application aimed to address the increasing problem of live Premier League games being streamed online without authorisation. The way infringing streams are being accessed has changed and has made them much easier to access. Set-top boxes, media players and mobile apps are now the tool of choice for accessing streams and as these access the streams at source (from the servers hosting the streams) rather than from websites, traditional blocking orders cannot address the problem. It is also difficult to take action against those responsible for the servers as they are increasingly being moved offshore, presumably for that very reason.
The streaming devices are readily available with the product description being cleverly worded in many instances to disguise that they are effectively copyright infringement tools. The ease of access to these devices then has the effect of making consumers believe accessing streams through these devices is not illegal.
Order requested
FAPL devised a two stage process to identify and block streaming services that are being used to illegally stream Premier League games. One of the identification processes is to remain confidential so as not to give infringers a head start on trying to circumvent the new measures.
The step we do know about is that FAPL must reasonably believe that the server in question has the sole or predominant purpose to enable or facilitate the access to infringing streams of Premier League games, or must not know or have reason to believe that the server is being used for any other substantial purpose.
Communication to the public following GS Media
Following the decision in GS Media, as well as assessing the now well established requirements under s.97A of the Copyright Design and Patents Act 1988 (CDPA) it was necessary for Mr Justice Arnold (Arnold J) to decide whether the operators of the streaming servers would be making acts of communication to the public within the meaning of s.20 CDPA. (The High Court decision in Cartier was discussed in our previous blogs here and here; it was subsequently upheld by the Court of Appeal).
Arnold J concluded that an act of communication to the public would be made for the following reasons:
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Streaming involves an act of communication by electronic transmission to each user who accesses a streaming server during a live game;
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The operators of the streaming servers intervene deliberately in full knowledge of the consequences of their actions and take conscious steps to make the stream available;
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The streamed footage is capable of being viewed by an indeterminate number of potential viewers and are in fact viewed by a large number of people;
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In the event that streams are taken from a source originally delivered by cable or satellite, streaming is a different technical means of communication which would require separate authorisation;
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In the event that the original source is an internet transmission, the people accessing these streams are a "new public" not envisioned by FAPL when they authorised the streaming of the footage to users of paid streaming services; and
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The acts of communication are targeted at the public in the UK and are therefore regarded as taking place there.
Comment
This is a very important decision and shows the courts' willingness to adapt to new technology and the problems it can create. The ISPs, especially Sky and BT, have invested huge sums of money to secure the rights to show Premier League football and other sporting events so it is unsurprising that they want to tackle the issue of illegal streams.
The problem that may arise is that the ISPs will have very little incentive to check that the server they have been asked to block by FAPL is not providing a legitimate service as they will want to protect their multi-billion pound investments. We shall therefore have to see whether the approach that has been decided on is successful or not.
Watch this space for an end of season review which is unlikely to appear in any club shops!