FAPL v ISPs – the next fixture of the Premier league season

Chris Dixon

In Football Association Premier League Ltd v British Telecommunications plc and others, the High Court granted the Football Association Premier League Ltd (“FAPL”) a blocking order targeting streaming servers.

Background

In FAPL v Sky [2013] EWHC 2058, FAPL was granted an interim injunction against the major UK ISPs (including Sky, TalkTalk and Virgin Media). This required the ISPs to block, or to take measures to block, their customers from accessing streaming aggregator sites, which allowed users to access streams of football matches which infringed FAPL’s copyrighted material.

Since 2013, developments in technology and increasingly sophisticated methods of avoiding detection taken by those who provide infringing content necessitated FAPL seeking a further targeted blocking order from the courts.

In the current case, FAPL sought an injunction against six major ISPs under section 97A of the Copyright, Designs and Patents Act 1988 which implements Article 8(3) of the Information Society Directive (2001/29/EC). This allows a court to grant an interim injunction against an ISP where they have actual knowledge of another person using their service to infringe copyright.

Further to their 2013 blocking order, FAPL now sought a blocking order targeting streaming servers in addition to the streaming aggregator websites. The claimant’s application was supported by five of the six defendants. As both ISPs and exclusive licensees of FAPL content, the defendants had a strong incentive to protect FAPL’s copyright in the content. Despite this, the court felt it necessary to determine whether the proposed order was justified, as third parties’ rights would be interfered with and these parties would not be represented in court.

FAPL’s arguments for a strengthened blocking order

FAPL argued that a new form of blocking order was required as unauthorised streaming of its copyrighted content since the last order had increased for the following reasons:

  1. Increasingly, consumers use set-top boxes, media players and mobile device apps to access infringing streams. These devices allow users to access streaming servers directly. Consumers have therefore moved away from accessing infringing content using internet web browsers.
  2. The above devices require significantly less technical skill and effort by consumers in order to access servers providing infringing content.
  3. Customers increasingly have access to high quality streams which rival those provided by paid-for subscription services.
  4. Consumers are now less aware that accessing infringing content direct from streaming servers is the same as accessing the infringing content on file sharing websites.
  5. Servers hosting infringing content have moved offshore and frequently change their IP addresses to avoid detection. The organisations behind the infringing servers have therefore become increasingly unresponsive to legal take down notices sent on behalf of rights-holders.

FAPL argued that the effect of these factors was to significantly reduce the value of FAPL’s rights. Unless the court was to grant a blocking order, increasing numbers of consumers would choose to access infringing streaming servers rather than pay for subscription services.

Terms of the new blocking order

The order granted by the court differed to the previous blocking order in four material ways:

  1. The blocking order would take effect only in the periods in which live Premier League footage was being shown.
  2. The list of infringing servers would be reset for every round of Premier League fixtures. This had the dual effect of allowing for newly identified servers to be notified to ISPs prior to each round of fixtures, without placing undue restrictions on old servers no longer hosting infringing content.
  3. The interim injunction granted was only to run for two months until the conclusion of the 2016-2017 Premier League season. A further injunction could then be applied for by the FAPL and updated based on the results of this test period.
  4. Additional safeguards were to be included in the order. These allowed for the injunction to be set aside or varied against any ISP, streaming service or customer who claimed to be adversely affected by a blocking order.

Court’s justification in granting the new blocking order

The court considered the proportionality of a new blocking order on the competing rights of those affected to be the overriding question in considering whether to grant the order. The court highlighted the following factors in particular:

  1. Interference with defendants’ freedom to carry on business – although there was likely to be some additional operating costs to the defendants, the court found that as the defendants either had, or were in the process of acquiring, the technology to carry out the order, there would not be a significant impairment on the defendants’ ability to provide services to their customers.
  2. Effectiveness and dissuasiveness – FAPL cited both historical evidence and research to support their conclusion that blocking infringing servers would lead to a significant reduction in the amount of infringing content available. They also provided evidence of the new methods available to the FAPL and ISPs which would allow for the rapid identification of infringing servers.
  3. Substitutability – in line with the opinion of Advocate General Szpunar in Stitching BREIN v ZIGGO BV (C-610/15), the fact that there were alternative sites providing the infringing content did not detract from the effectiveness of the blocking order. Inclusion of a list of servers updated weekly also meant that consumers would be less able to switch between infringing servers.
  4. Alternative measures – no other alternative measures were identified by the parties which would be sufficient to prevent access to the infringing content on streaming servers. Where the FAPL and licensees have identified other methods by which to reduce access to the infringing content, these have either been widely ignored (e.g. take down notices sent to off-shore hosting companies) or circumvented (e.g. increasing sophistication of sellers using online market places to market set top boxes enabled to access infringing content). Importantly, it was found that these methods also fail to have an immediate impact on streaming servers. For any measure to be considered a success, ISPs need to be provided with streaming servers details immediately so that action can be taken whilst matches are shown live.
  5. Avoidance of barriers to legitimate trade – the court found that servers used to host infringing content are almost exclusively dedicated to the activity of providing infringing content. Even where it could be shown that a blocking order would interfere with hosting legitimate content, the court decided that this was likely only to be a small proportion of the server’s activity and would only take place for the duration of Premier League football matches.
  6. Safeguards – the additional safeguards introduced in the new blocking order, especially the short duration of each period to be blocked and the limited time which the order had been granted for, persuaded the court that a blocking order was justified.

Comment

The court’s willingness to grant a blocking order on ISPs against streaming servers represents the next development in right-holders enforcing their rights against those providing infringing content. In concluding that it was proportional for the court to grant a blocking order, the legal rights of third parties not represented at the hearing were found not to be significantly interfered with due to the increased safeguards incorporated in the blocking order.

Unlike other types of infringing content, the value of live sporting events is limited to the time of the event itself. The claimant’s requirement that the defendants only implement the blocking order for a minimal period of time appears to have greatly influenced the court’s decision to grant this order. As the current order is set to run until the end of the 2016-2017 Premier League season, it is highly probable that further developments in this area of injunctions will be seen in advance of the next Premier League season.

Football Association Premier League Ltd v British Telecommunications plc and others [2017] EWHC 480 (Ch)

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