A new advanced approach - live blocking injunctions – The Football Association Premier League v BT and Others I and II
There have been a number of decisions in the UK Courts where internet service providers ("ISPs") have been subject to blocking orders to prevent consumers from accessing websites that provide static content without the consent of the authorised rights holders.
Earlier this year, the High Court went a step further when the Football Association Premier League ("FAPL") applied for a blocking order pursuant to Section 97A of the Copyright, Designs and Patents Act 1988 (the "CDPA") against six major ISPs. The FAPL initially sought the order to tackle consumers accessing live streams of matches in the last few months of the 2016/17 Premier League season on unnamed streaming servers without the FAPL's consent.
Unlike previous blocking orders granted against identified websites, the FAPL's application was initiated due to the complex and constant challenges that streaming technology poses to sporting bodies - consumers now have the ability to directly access infringing streams of footage through many more platforms and devices.
The High Court was satisfied that the following criteria were established in order to grant the injunction:
i. the ISPs were service providers;
ii. the users and/or the operators of the target servers infringed the FAPL's copyright;
iii. there was use of the defendant ISPs' internet services to infringe the FAPL's copyright by the target servers and users; and
iv. the ISPs had actual knowledge of the above.
In exercising his discretion to make the "live" blocking order, Arnold J considered that the FAPL's legitimate interest to avert infringement did not damage the ISPs' freedom to carry on business. The order differed from those referenced in the first paragraph of this article. Most notably, the order:
was a "live" blocking order that would only take effect whilst the Premier League match in question was being broadcast;
focussed on target servers, instead of identified websites;
provided for the list of target servers to be "re-set" each match week or fortnight during the Premier League season;
was limited to a short period only – 18 March 2017 to 22 May 2017 (the end of the 2016/17 Premier League season); and
applied additional safeguards including requiring notice to be sent to each individual ISP on a weekly basis when one of its IP addresses was to be blocked.
The FAPL then sought a second order on largely the same terms as the first order to cover the 2017/18 Premier League season from 12 August 2017 to 13 May 2018. The effectiveness of the first order was reviewed by Arnold J, with evidence showing that 5000 server IP addresses had been blocked. Further, there was no evidence of "over blocking". As such, Arnold J granted the second order for "essentially the same reasons" given for the first order.
The decision to grant the "live" blocking orders confirms that the Court recognises and is willing to address the problems new technologies pose to the infringement of intellectual property rights. It remains to be seen if other sporting bodies and rights holders will follow suit and if the FAPL will continue to apply for such "live" blocking orders in the years to come.
An alternative approach
In an era of such rapid advances in technology and increases in multi-platform media usage, major sporting bodies may need to be even more creative in order to protect their rights.
For example, the FAPL's Spanish counterpart LaLiga has adopted a particularly aggressive approach to protect its high-ticket media-rights deals with broadcasters.
Marauder is software that was launched by LaLiga in February 2015 with the aim to tackle online illegal streaming and copyright infringement of LaLiga footage. The software identifies infringing content online through the use of keyword detection by scanning different search engines, social media platforms and mobile apps. The provider and the server are then identified and sent an automatic notification to remove the infringing content.
It is working. An internal report commissioned by LaLiga showed that the total number of reported infringing videos online during the 2016-17 season was 157,864. 154,963 of these videos were removed (98.16%).
With LaLiga's success rate, other international sporting bodies may consider adopting a similar approach to address the issue head-on instead of relying on the courts.