A few weeks ago we wrote about the growth of criminal prosecutions against intellectual property infringers and, in particular, the suppliers of illegal IPTV boxes. These IPTV boxes enable their purchasers to receive unauthorised streams of football matches infringing, amongst others, the copyright of the Premier League which sells the exclusive right to broadcast its matches by territory for considerable sums of money.
Several of these criminal prosecutions have resulted in custodial sentences and large fines being imposed on the suppliers of the IPTV boxes. Earlier this month another high profile case resulted in Teeside Crown Court imposing a ten month prison sentence, suspended for one year, on a Mr Malcolm Mayes from Hartlepool along with an order to pay £250,000 in the form of costs of £170,000 and a further £80,000 under a Proceeds of Crime Order.
New developments in the civil courts
While the number of criminal prosecutions and sanctions imposed continues to grow, the civil courts have also been asked by the Premier League to find ways to address the growth of unauthorised streams of Premier League matches being watched through IPTV boxes and media players (such as the popular Amazon Fire TV Stick) rather than through web browsers running on computers.
The switch to these methods of accessing unauthorised streams means that traditional blocking orders (targeting websites) ordered by the court against the website operators and/or internet service providers (ISPs) 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.
The skill and effort required to find and use such devices and apps to access infringing content has fallen dramatically and the sources of infringing content often update automatically, making it possible to access a large number of high-quality infringing streams of footage of each Premier League match.
There is also evidence that a significantly higher proportion of UK consumers believe incorrectly that it is lawful to access unauthorised streams using such devices and software than believes that it is lawful to access unauthorised content via file-sharing websites.
A difficulty faced by the Premier League and other right holders is that the streaming servers used to make available infringing streams to the public have increasingly been moved to offshore hosting providers. These providers do not cooperate with right holders' 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.
As a result of these factors, there is increasing evidence of football fans turning to streaming devices which access infringing streams as a substitute for paid subscriptions to services such as those offered by Sky and BT. This undermines the value of the Premier League’s rights and, if unchecked, it is argued is likely to reduce the revenue returned by the Premier League to football clubs, sports facilities and the wider sporting community.
In response to this, following an application by the Premier League, Mr Justice Arnold has handed down a judgment in the High Court (The Football Association Premier League Ltd –v– British Telecommunications Plc (and Others)  EWHC 480 (Ch)) which provides the Premier League and other right holders with a new means of clamping down on this activity by making the first ever “live” blocking order. This is a block which is applied while the infringing content is being streamed, against the major UK ISPs, two of which (Sky and BT) have an interest in the subject matter as exclusive licensees of broadcasting and internet transmission rights for Premier League footage in the UK. The blocking order has been made under section 97A of the Copyright, Designs and Patents Act 1988 which empowers the High 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".
The video monitoring technologies used by the Premier League now permit the identification of infringing streams with a very high level of accuracy in close to real-time during Premier League matches. The servers from which such streams emanate can be notified to ISPs nearly instantaneously.
In order to limit the ability for the Order of the court to be circumvented part of it is confidential but the court does identify two criteria which the Premier League and its contractor must abide by when notifying ISPs of unauthorised and infringing streams:-
- They must reasonably believe that the server has the sole or predominant purpose of enabling or facilitating access to infringing streams of Premier League match footage; and
- They must not know or have reason to believe that the server is being used for any other substantial purpose.
Advances in ISP’s blocking systems will allow them to block and unblock IP addresses during the course of Premier League matches, in some cases automatically. If this process is automated, or if manual supervision can be provided at the relevant times, this means that blocking can be responsive to changes in the IP addresses being utilised by the operators of streaming services at the times when blocking is most needed to protect the rights in question. It also means that blocking need not occur outside of match times.
The Order of Mr Justice Arnold is a clear demonstration that the law and courts are flexible enough to be applied to address changing technology and the way in which unauthorised and infringing content is being provided to and accessed by an increasing number of UK consumers.
A key motivation of the court in making the Order is that it believes that it will be effective and dissuasive in that it will substantially reduce infringements of the Premier League’s copyrights in the UK via unauthorised streams of Premier League matches that will now be blocked, thus educating UK consumers that accessing infringing streams is not a lawful or reliable way to access Premier League content.
The live blocking Order remains in force 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 the Premier League 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.