The Football Association Premier League (FAPL) recently won its application for a court order that the six main retail internet service providers block access to streaming servers until the end of the 2016/2017 Premier League Season. The application covered live streaming only – i.e. it only applies when those servers are streaming infringing content.
FAPL sought the order to combat a growing problem it is facing – more and more consumers are accessing the FAPL's paid for football content through infringing streams on devices such as mobile phones and tablets (as opposed to through websites).
The distinction between accessing infringing content through applications on devices rather than websites is important because whereas the law governing obtaining blocking orders against websites that stream infringing content is "now fairly well established", the law has not, until now, been applied to infringements where devices connect directly to streaming servers via their IP addresses (which is often how a phone or tablet application connect to an infringing stream).
The Order sought
FAPL sought an order that the six ISPs block access to streaming servers identified under section 97A of the Copyright, Designs and Patents Act (CDPA) which permits UK courts to grant "an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright".
FAPL proposed that the streaming servers would be identified via a 2-step process. One of the criteria put forward by FAPL for identifying those streaming servers was held to be confidential (disclosure would facilitate circumvention of a blocking order and was commercially sensitive), but the other, which was disclosed by the court in the public interest, is as follows:
"First, FAPL and its contractor 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. Secondly, FAPL and its contractor must not know or have reason to believe that the server is being used for any other substantial purpose."
The six ISPs did not oppose the application; in fact a number of them supported the application and even filed evidence in support.
Arnold J granted the order sought. In so doing Arnold J found that the target servers would infringe copyright if they were allowed to stream the content to users because: (i) the streaming of the content would be a communication to the public within section 20 of the CDPA; and (ii) the operators would be authorising copying by their UK users of the streamed content, as the users copy the streamed content into the memory of their devices to enable playback (and the operators are liable as joint tortfeasors with the users).
Interestingly, Arnold J relied on the recent CJEU case of GS Media BV v Sanoma Media Netherlands BVin finding that the streaming of the content would be a communication to the public - this appears to be the first time GS Media has been relied on in the English Courts since the decision was handed down.
Section 97A orders are clearly a useful weapon in rightsholders' arsenal to stop infringement of their digital content, particularly now that the courts are willing to mould these orders to capture the shifting methods by which infringers seek to exploit rightsholders' content.
Alongside the decision in Cartier (which held that a blocking order was available to a rightsholder to prohibit trade mark infringement under s37(1) of the Senior Courts Act 1981), the type of order issued in this case is another welcome development for rightsholders - that said these orders are reactionary, necessarily limited in scope to the ISPs and the servers identified in the order, and are therefore clearly not a panacea for the large scale infringement of digital content which has been ongoing for many years.