First injunction against ISP in respect of illegal streaming servers in UK

“FAPL” is the governing body of the football competition known as the Premier League. FAPL owns the copyright in films comprising television footage of all Premier League matches, and in artistic works which appear within that footage. By its claim FAPL sought an injunction against the six main retail internet service providers (“ISPs”) in the United Kingdom pursuant to section 97A of the CDPA 1988, which implements Article 8(3) of the Information Society Directive, requiring the defendants in this case to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of Premier League footage to UK consumers.

The application sought to combat the growing problem of live Premier League footage being streamed without the consent of FAPL (or its licensees) on the internet. First, consumers are increasingly turning to set-top boxes, media players (such as the popular Amazon Fire TV Stick) and mobile device apps to access infringing streams, rather than web browsers running on computers. This means that traditional blocking orders (targeting websites) will not be able to prevent the growing majority of infringements, because these devices do not rely upon access to a specific website in order to enable consumers to access infringing material. Instead, such devices can connect directly to streaming servers via their IP addresses.

Secondly, the skill and effort required to find and use such devices and apps to access infringing content has fallen dramatically. Moreover, sources of infringing content often update automatically. Thirdly, it is now possible to access a large number of high-quality infringing streams of footage of each Premier League match.

Fourthly, the streaming servers used to make available infringing streams to the public have increasingly been moved to offshore hosting providers who do not cooperate with rightholders’ requests to take down infringing content either at all or in a timely manner. A timely response is important in the case of Premier League matches because, to be effective, any intervention must occur during the course of a match. The operators of streaming servers regularly change the IP addresses from which the servers operate.

The streaming server is the crucial link in the chain by which an unauthorised copy of footage of a Premier League match is transmitted to the consumer. A single server may be accessed using a number of different user interfaces. For example, the same stream on the same server may be accessed via multiple apps, websites and add-ons for set-top boxes. If access to that server is blocked, all of those access mechanisms will be disrupted.

First, the Order is a “live” blocking order which only has effect at the times when live Premier League match footage is being broadcast. Secondly, the Order provides for the list of Target Servers to be “re-set” each match week during the Premier League season. This allows for new servers to be identified by FAPL and notified to the Defendants for blocking each week, and ensures that old servers are not blocked after the end of a week unless they continue to be observed as sources of infringing footage.

Thirdly, the Order is only for a short period. It comes into force on 18 March 2017. It will only endure until 22 May 2017, which is the end of the 2016/2017 Premier League season. The short duration of the order is intended to enable an assessment of its effectiveness, and of any issues encountered, with a view to FAPL applying for a similar order to cover the 2017/2018 season, with any changes that may seem appropriate in the light of this season’s experience.

Fourthly, in addition to the safeguards which have become standard in section 97A orders, the Order requires a notice to be sent to each hosting provider each week when one of its IP addresses is subject to blocking. Furthermore, the hosting providers and the operator of any website or streaming service claiming to be affected by the Order are given permission to apply to set aside or vary the Order as well as the operators of the Target Servers and any customer of the Defendants who claims to be adversely affected by the Order.

In the course of streaming the Works, 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.  In some cases, a substantial part of a Work may be copied in a single frame (for example, a Logo). In the case of films of matches, copying of a substantial part is very likely to occur if users stream footage of any appreciable segment of the match.  Such copying obviously takes place in the UK insofar as users are located in the UK.

Operators of Target Servers which stream the Works communicate the Works to the public.  Streaming involves an act of communication of the Works by electronic transmission to each user who accesses a streaming server during a relevant match period. Insofar as the streams are taken from a source which was originally delivered by cable or satellite broadcast, streaming is a different technical means which requires separate authorisation from the rightholder. Nor have Sky or BT.

Even where the source is an internet transmission, the class of persons to whom the Works are communicated is a “new public” which was not already taken into account by FAPL (or Sky or BT) when they authorised the initial communication to the public of their work in the form of broadcasts and specific transmissions to authorised users of paid streaming services. Plainly, in delivering services such as BT Sport, Sky Sports or NOW TV to paying subscribers, Sky and BT have not taken into account that the works so broadcast or transmitted would be made freely available to all internet users by means of the Target Servers.

As to the Defendants’ freedom to carry on business, the orders sought by FAPL would not impair the substance of this right. The orders would not interfere with the provision by the Defendants of their services to their customers. The orders would not require the Defendants to acquire new technology: they have (or are in process of acquiring) the requisite technology already. The main effect of the Orders would be to impose additional operating costs on the Defendants.

As for the freedom of internet users to impart or receive information, this plainly does not extend to a right to engage in copyright infringement. Since the Target Servers appear to be exclusively, or almost exclusively, engaged in infringing activity, at least during the periods in which the Order will take effect, the operators have no right which requires protection. Thus the only question is whether any lawful activity may be adversely affected. Given the targeted nature of the Order, and the safeguards built into it, that should not be the case.

While it is theoretically possible that a certain proportion of streamed content may be non-infringing, the inference to be drawn is that such content is de minimis or at least very small. In any case, any interference with legitimate content would only be temporary due to the very short duration of each instance of blocking.

For the reasons mentioned above, the Judge concluded that the Court had jurisdiction to make the Order.