Background

How do you protect a copyright holder from large-scale online infringement; when the act and subsequent damage occurs during a 90-minute window?

This is a question that has challenged the Premier League over successive seasons – with infringers distributing feeds of lives games to large audiences through increasingly sophisticated and seamless methods.

At the end of the 2017/2018 season, the English Premier League sought a “live blocking injunction” against internet service providers (ISPs) such as Sky and BT, to curtail widespread copyright infringement relating to Premier League Football coverage.

This original order was the first of its kind, as it sought to legally block infringement prima facie whilst it was occurring.

Here it was viewed that damage being experienced by the rights holder from this kind of infringement – the illicit broadcasting of live games – was highly contextual; insofar as this damage was maximised during the duration of the broadcast.

In prior technological configurations, the law was able to address infringers, but not at the pace required to stop infringement – and significant damage resulting from it – in good time.

Crucially, earlier forms of this character of infringement were undertaken through access to websites and required a certain technical nous to achieve. As such, the amount of damage was relatively low and limited to a subset of persistent and technically fluent end-users – and not lay users.

Contemporary forms of infringement, through use of: smartphones, set-top boxes and software apps; has made such infringement far easier for users. In some cases, these create seamless user experiences akin to legitimate streaming services.

In conjunction with the continually increasing value of broadcast rights for Premier League games – exceptional means to remove illicit streams had become required.

The decision was upheld at the time, and thereafter was subject to grounds for an extension, which occurred recently and are addressed as the main subject of this article.

Decision

The new order sought was an extension of the previous order granted for the 2017-2018 season – wherein the Justice Arnold dealt with issues in terms of end-users access illicit streaming services.

Technologies such as Kodi boxes and other consumer-level hardware and software had enabled this to become increasingly prevalent. The unprecedented impact of this technology ravaged the sports broadcasting industry at the time.

As previously stated, the original order was the first of its kind, in that it was a blocking injunction – itself deploying the latest technology available (namely “fingerprint recognition technology”) to identify and remove streams in real-time.

Such actions come at significant effort as evidential costs are “front-loaded”; as a Claimant must prove infringement in any application against a new Defendant (or a previous one where any circumstance have been subject to change).

Front-loaded costs include: legal fees, evidence gathering, use of content recognition systems and external IT support. Each at significant cost to the Claimant.

With broadcasting being such a significant part of EPL revenue, however, this preparation and enforcement is likely standard play in the day-to-day operation of the league.

This norm appears to also extend beyond the domestic league with UEFA applying for a similar order earlier in the year. It is perhaps only a matter of time until this is seen in other sporting arenas where illicit streams are causing concern, e.g. PPV MMA and boxing. The thought process behind this delay is the cost (of the application) vs the benefit (of the injunction) analysis; EPL has multiple, regular matches each week, whereas some other subscription based or pay-per-view sports are less regular.

The key differences that Justice Arnold has implemented in this second decision (viewed as an extension of the first decision to address the 2018/2019 season) are:

  1. Enlarging the subset of infringing streaming servers to be blocked; which is featured in Schedule 3 of the order so that the names are kept secret and it cannot be circumvented.
  2. The requirement to notify hosting service providers is now subject to a short delay, rather than being immediate as before. This is also to prevent the block being circumvention at the time that infringement is occurring.

As with most applications in relation to blocking injunctions the defendants, namely ISPs, supported the order in five out of six instances (the other not opposing it) and it was simply dealt with on the papers.

In addition, evidence was filed by Claimants to prove the efficacy of such an order from its trial run at the conclusion of the prior season.

Opinion

The extension of the “live” blocking orders against illegal streaming of Premier League matches into the 2018/2019 season proves that blocking injunction models are still the go-to practice for such online infringement.

Furthermore, the trial run at the conclusion of the prior season clearly demonstrated efficacy and efficiency in dealing with such an issue.

It is notable that two of the largest ISPs, Sky and BT, are license holders for Premier League broadcasting rights in the UK – which may have influenced the desire for expeditious enforcement of the aforementioned rights from the ISPs.

Live blocking orders are also a brilliant example of how the court is keeping up to date with the latest technological advancements at play. Will this process allow the court to take a proactive, not reactive approach to dealing with advancements in infringing technology? This remains to be seen.

Practically, it is difficult to pre-empt the next technological advancement and how this will be used to circumvent copyright. However the above suggests a renewed desire to stay ahead of new innovations.

Notably, all cases in relation to blocking injunctions are not presenting the court with a new legal argument on infringement; rather just new arguments how Section 97(a) can be applied to new methods of digital infringement.

One suspects that there is little that can be done in future-proofing this area of law with legislation; the court will simply have to deal with the next technological advancement as it comes. Such flexibility and extension of relevant orders mean that this may be the closest we can get (at present) to attempting the same.

Critically, the fluidity in this extension represents how the law in this highly technical area may develop – insofar as it is a requirement for the law to be able to adapt to rapidly innovative means of infringement.

One suspects that there is little that can be done in future-proofing this area of law with legislation… Such flexibility and extension of relevant orders mean that this may be the closest we can get (at present) to attempting the same.”

So, if the question is: how you stop rapidly innovating online infringement occurring? The answer might be to adopt an equally innovative approach to the law in the area, that can match and claim victory over a wily and underhand opposition (without going into extra time).