Volume: 19 Issue: 4
The UK High Court granted a blocking injunction on 9 March 2017 (the ‘Order’) requiring six major UK ISPs to block access to streaming servers that enable users to watch Premier League football broadcasts without a licence, as delivered by Kodi set-top boxes, for example; the Order follows an application by the Football Association Premier League (‘FAPL’).
Rather than targeting specific websites, the Order blocks the IP addresses of servers streaming Premier League matches instead, and will take the form of real-time blocking covering when matches are broadcast. “FAPL is required to notify the ISPs of the list of IP addresses to be blocked for each match, which can be updated during the match,” explains Rachel Alexander, Partner at Wiggin LLP. “The list of target servers is ‘re-set’ each match week during the Premier League season, to ensure that servers which are no longer sources of infringing footage are not blocked.”
Arnold J noted evidence that fans are increasingly turning to streaming devices rather than paying for subscriptions to watch matches, which in his view “undermines the value of FAPL’s rights and, if unchecked, is likely to reduce the revenue returned by FAPL to football clubs, sports facilities and the wider sporting community.” “There is reason to believe that blocking streaming servers will be more effective than seeking to block access to specified websites,” said Dawn Osborne and Matthew Siddaway of Palmer Biggs IP. “This is because consumers are increasingly turning to mobile device apps, media players and set-top boxes to access infringing streams. For these types of infringement the streaming server is the essential component which enables live content to be streamed to consumers and each server may be accessed using a number of different user interfaces on different platforms. Blocking orders targeting websites are not able to prevent this activity because these devices can connect directly to streaming servers without any form of website being involved.”
Five of the six ISPs involved positively supported the Order, “perhaps not so surprising given that some of the ISPs have a vested interest,” notes Alexander. “BT and Sky, in particular, are exclusive licensees of Premier League footage in the UK.” The Order ends on 22 May 2017, when the 2016-17 season finishes. Arnold J noted that the Order will then be assessed as to its effectiveness.
“It is a grey area as to whether or not internet users who stream infringing content are personally liable for copyright infringement. The question has been referred to the CJEU in Filmspeler, where the Advocate General has opined that end users can be personally liable for copyright infringement. It is therefore interesting to note that Arnold J found that end users infringe the Premier League’s copyright when connected to infringing streams, stating ‘users who access a stream cause their computer, mobile device or set-top box to create copies of the works in the memory of those devices’ and, therefore, they infringe FAPL’s copyright. It remains to be seen whether the CJEU shares the same view, although it is highly likely that it will,” notes Steven James, Partner at Brown Rudnick LLP.