Copyright: blocking order against live streaming

The High Court has ordered internet service providers (ISPs) to block access by their customers to streaming servers that deliver copyright-infringing live streams of sporting events to UK consumers.

Background

An injunction may be obtained against an ISP that has actual knowledge of another person using their service to infringe copyright (section 97A(1), Copyright, Designs and Patents Act 1988) (section 97A).

In Football Association Premier League Ltd v British Sky Broadcasting Ltd and others, the High Court ordered a number of ISPs to block access to a website operating as an indexing and aggregation portal to unauthorised streamed broadcasts of sporting events provided by third-party streamers ([2013] EWHC 2058 (Ch)). 

In Stichting BREIN v Ziggo BV, the Advocate General opined that the fact that websites other than the blocked website could be used to infringe did not detract from the effectiveness of the blocking measure (www.practicallaw.com/5-640-0650).  

Facts

F owned the copyright in films comprising television footage of all Premier League football matches, and in artistic works which appeared in the footage. 

F sought an injunction under section 97A against the six main retail ISPs in the UK (together, B). The proposed injunction would require B to take measures to block, or impede, access by their customers to streaming servers that deliver infringing live streams of Premier League footage to UK consumers. F's application was agreed or not opposed by B. 

Decision

The court decided that it had jurisdiction to make the order and that it should exercise its discretion to do so. 

As the order affected third parties not before the court, the fact that the making of the order was agreed by B did not absolve the court from the responsibility of considering whether the order was justified.

The application differed from previous orders against ISPs such as that granted in Football Association as it sought for the first time that a blocking order directed at streaming servers rather than a website. The application sought to combat the growing problem of live Premier League footage being streamed without the consent of F, or its licensees, on the internet. Consumers were increasingly using streaming devices that accessed infringing streams as a substitute for paid subscription services.

The order made was a "live" blocking order that had effect only at the times when live Premier League match footage was being broadcast. Although it was standard practice for orders under section 97A to enable the IP address or URL of the target website to be updated as and when necessary, the order provided for the list of target servers to be "re-set" each match week during the Premier League season. This allowed for new servers to be identified by F and notified to B for blocking each week, and ensured that old servers were not blocked after the end of a week. 

The order was for a short period only and would endure only until the end of the 2016/2017 Premier League season. The short duration of the order was intended to enable an assessment of its effectiveness, and of any issues encountered, with a view to F applying for a similar order to cover the 2017/2018 season, with any changes appropriate in the light of this season's experience.

The court’s jurisdiction was based on the fact that users who accessed a stream caused their computer, mobile device or set-top box to create copies of the copyright works in the memory of the devices. Operators of target servers that streamed the works communicated the works to the public because: 

• The process of setting up a streaming server and configuring it to interface with a streaming platform; and connect to, and copy, a source feed with Premier League footage were conscious steps that must be taken by the operators.
• The works were communicated to the public since the streams were capable of being viewed by an indeterminate number of potential viewers, and were in fact viewed by a large number of people. 
• Even where the source was an internet transmission, the class of persons to whom the works were communicated was a "new public" that was not already taken into account by F. 
• The acts of communication to the public were targeted at the public in the UK and were therefore to be regarded as taking place there.

Factors considered by the court in deciding to grant the order included the effectiveness and dissuasiveness of the order in that it would substantially reduce infringements of F's copyrights by UK consumers. Past experience suggested that blocking caused a material reduction in the number of UK users who accessed blocked websites. The same might be expected of blocked streaming servers. Blocking access to streaming servers was also likely to be more effective than blocking websites which embedded or linked to streams from the servers both because streaming servers were the crucial link and because multiple websites typically embedded or linked to each server stream. There was reason to hope that blocking access to the target servers would help to educate UK consumers that accessing infringing streams was not a lawful or reliable way to access Premier League content.

As to substitutability of other streaming servers for the target servers, the order made provision for the future detection and blocking of streaming servers that were used to stream Premier League content as well those comprising the initial list of target servers. This made the prospect of consumers switching to other streaming servers less of a concern.

The court accepted that there were no alternative measures available to combat the infringements. The targeted nature of the order meant that it avoided creating barriers to legitimate trade. The short lifespan and high bandwidth requirements of streaming servers meant that they were almost exclusively dedicated to the activity of streaming. They were not used for other purposes such as hosting legitimate websites. Any interference with legitimate content would be only temporary due to the very short duration of each instance of blocking. Stichting BREIN supported the conclusion that the interference was justified by the protection of F's rights. 

Comment

This is the first time that a blocking order has been ordered in respect of streaming servers. Therefore, while the decision involved the application of well-established principles since Football Association, the modification of the factors to be taken into account to address the different context is interesting. The order contained additional safeguards over and above those previously adopted in the context of website-blocking, notably the short duration of the order.

Case: Football Association Premier League Ltd v British Telecommunications Plc and others [2017] EWHC 480 (Ch).

First published in the May 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers.  Subscription enquiries 020 7202 1200.