March 27, 2017
Site blocking orders evolve to combat live streaming
Site blocking orders evolve to combat live streaming
On 13 March, the High Court took an evolutionary step in the law relating to online blocking injunctions.  Justice Arnold concluded in Football Association Premier League (‘FAPL’) v BT, EE, PlusNet, Sky UK, TalkTalk and Virgin Media [2017] EWHC 480 (Ch) that the Court had jurisdiction under Section 97A of the Copyright, Designs and Patents Act 1988 ('CDPA') to order these six major internet service providers (‘ISPs’) to block access to specific server IP addresses that were delivering live pirated streams of Premier League football matches to consumers.  Section 97A empowers the Court ""to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright"". This is the first ‘live’ blocking order of its kind in the UK and builds upon the body of law relating to injunctions to block user access to infringing websites.

FAPL sought the injunction to tackle the growing problem of live, unauthorised streaming of its footage of football matches.  The development of IPTV set-top boxes and other devices and apps that connect directly to streaming servers via their IP addresses (rather than through internet browsers and websites) has made it much easier for users to access both legitimate and illicit streaming and simultaneously blunted the potency of 'traditional' blocking orders that were targeted at websites. FAPL's application for the injunction to cut off access to specific streaming servers was supported by a number of other right holders, including the BBC, and – unusually, but not surprisingly – the majority of the defendants, among whom were the two exclusive licensees of Premier League footage in the UK, BT and Sky.

The nature of the Order differs from earlier blocking orders in a number of ways:
  • It is a ‘live’ blocking order meaning that ISPs are able to block access to the servers only whilst the football matches are being broadcast – i.e. access to the server is resumed once the match has finished;
  • The list of target servers is to be ‘re-set’ or updated each week as new infringing servers are identified by FAPL (with one criterion for identification remaining confidential in order to minimise the possibilities for circumvention of the order);
  • It is a short-term order – effective between 18 March 2017 and 22 May 2017, to coincide with the end of the Premier League season;
  • Notices are to be sent each week to hosting providers when one of their IP addresses is identified as a target of the blocking order.
The decision expands the application of blocking orders. Originating in copyright law, orders compelling ISPs to block access to websites hosting infringing content have already found new application in the context of trade mark enforcement (see posts here, here and here on the Cartier decisions).  The present decision shifts the target of the blocking orders further up the chain from websites to servers.

Furthermore, in establishing the Court's jurisdiction to make an order of this nature under s.97A CDPA, Justice Arnold applied the principles of the recent CJEU ruling in GS Media BV v Sanoma Media Netherlands BV (C-160/15) in holding that operators of streaming servers commit an infringing act of communication to the public because they take 'conscious steps' to intervene and configure a server to connect to and copy a source feed of FAPL footage to make it available to a 'new public' not otherwise able or authorised by FAPL or its licensees to view the footage.  Moreover, they do so for profit, frequently in the form of advertising revenue.  Furthermore, where the source feed is a satellite or cable broadcast, streaming by the server operators constitutes transmission by different technical means for which authorisation from the right holder would be required, in line with ITV Studios Ltd v TVCatchup Ltd [2013] EUECJ C-607/11.

The decision also demonstrates how the Courts balance the competing interests of the parties - the ISPs, the server operators, and internet users - when making any kind of order for injunctive relief. Although seemingly straightforward in this case as the ISPs themselves supported the application (suggesting that complying would not unduly affect their ability to conduct a business), it was still important to have regard for the technologies available to ISPs in enforcing the order and to consider carefully the criteria on which servers were identified for blocking, so that the order could be framed not to be too onerous on the ISPs or to block servers unnecessarily when they were not streaming infringing content.  The resulting 'live' order was considered appropriately targeted and proportionate because technologies exist which help FAPL identify infringing streams in real time with a high degree of accuracy and ISPs have the wherewithal to block and unblock access to servers more or less automatically.

Overall, the decision is a good example of the Court exercising creativity, flexibility and a willingness to ensure that the enforcement of law keeps pace with technological advances and consumer habits.  The issues posed by IPTV boxes in particular have received significant attention of late, with the UK IPO soliciting informed views as to whether or not legislative changes are required to deal with them (see here) and a spate of criminal prosecutions against individuals supplying boxes programmed to find illegal streams (a practice condemned by IP minister Jo Johnson as ""theft""). This decision provides welcome reassurance to right holders that civil remedies are also available to disrupt such practices at the 'crucial link' in the chain. Moreover, the clear intention is that the efficacy of the short-term order should be reviewed when it comes to an end, allowing FAPL and the Court to consider what lessons have been learned this time around for if/when FAPL applies for a new order next season.
Telecoms /  Designs & Copyright /  Sport /  Arts & Entertainment

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