The Football Association Premier League ('FAPL') v (1) BT; (2) EE; (3) Plusnet; (4) Sky; (5) TalkTalk; and (6) Virgin
Media  EWHC 480 (Ch)
In FAPL v BT, EE, Plusnet, Sky, TalkTalk and Virgin Media  EWHC 480 (Ch) the High Court has granted an order against the leading retail internet service providers (ISPs) blocking access to streaming
servers transmitting content which infringes copyright owned by the Premier League. Whil
st previous s.97A CDPA 1988 cases have tended to concern the blocking of access to websites, this case is significant as it is the first time a blocking order has been granted in respect of streaming servers.
The order was sought to combat the growing problem of live Premier League games being streamed without consent. Consumers are increasingly turning to set top boxes, media players and mobile device apps to access infringing streams. For these types of infringement the streaming server is the essential component which enables live content to be streamed to consumers and each server may be accessed using a number of different user int
erfaces on different platforms. Traditional blocking orders targeting websites are not able to prevent this activity because these devices can connect directly to streaming servers without any form of website being involved.
The order granted differs from previous orders granted in s.97 A cases in various ways. Most significantly, the order granted is a "live" blocking order which only becomes active at the times when live Premier League match footage is being broadcast. The order has also been drafted to provide for the list of target servers to be "re-set" for each match week of the Premier League season, allowing the FAPL to identify new servers to be notified to the Defendant ISPs for blocking before each round of games.
FAPL's application was supported by BT, Plusnet, EE, Sky and Virgin, whilst TalkTalk confirmed in writing that it did not oppose the application. Further, all of Defendants were involved in pre-action negotiations and a draft order was agreed prior to trial. This shows there is increased co-operation _ from ISPs for cases such as this. However, all of the ISPs in this action have a direct or indirect interest in the protection of FAPL's rights. BT and Sky are the two exclusive licensees of broadcasting and internet transmission rights for Premier League footage in the UK - this privilege costs them billions of pounds each year. EE and Plusnet are wholly owned subsidiaries of BT, whilst Virgin and TalkTalk both retransmit BT and Sky's licensed channels containing Premier League footage to its subscribers. It is therefore unsurprising the ISPs were so willing to co-operate in this case.
Although the terms of the order had been agreed between the parties before trial, Mr Justice Arnold went through the now well established criteria for s.97 A cases to determine whether or not the order should be granted. It was well established that the defendants were ISPs and the conclusion was reached the infringements were taking place. Interesting, the judge applied the CJEU's decision in GS Media when assessing communications made to the public by the operators of the target servers. Arnold J determined that communications to the public had been made because the operators had "intervened deliberately, and in full knowledge of the consequences of their actions where the users would not in principle be able to enjoy the copyright protected works without that intervention". Further, even if they had not known, the profit making intention of the operators served to raise a presumption of knowledge for these communications to be to the "new" streaming public. It was further established that the operators of the target servers were using the ISPs services to infringe and the ISPs had the relevant knowledge (by virtue of pre action correspondence and negotiations). Mr Justice Arnold then cited his earlier decision in Cartier and commented that the overriding question to be considered is whether the order sought is proportionate having regard to the competing rights in play. It was held that the FAPL has a legitimate interest in curtailing infringement of its copyright and the Order, if granted, would not impair the defendants' freedom to carry on business. Further the freedom of internet users to impart and receive information plainly does not extend to a right to engage in copyright infringement. Further, the order sought was held to be effective, dissuasive, not unnecessarily complicated or costly and it avoided barriers to legitimate trade. The order was therefore granted.
The granting of this order shows a continued willingness by the Court for s.97A CDPA 1988 to be applied in a way which is able to meet modern technological advances. We have now seen this provision successfully deployed to block access to websites and streaming servers providing access to material infringing copyright. We have also seen section 37(1) of the Senior Courts Act 1981 deployed in a similar way to block access to websites selling counterfeit goods infringing a Claimant's trade marks (Cartier). This area of law has therefore evolved significantly in the last few years and should be seriously considered by rightsholders when compared to other possible ways of dealing with online IP infringement.
On a final note, the order granted is only intended the cover the period of 18 March 2017- 22 May 2017. This is much shorter than previous orders granted under s.97A CDPA 1988. Arnold J stated that "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 for the 2017/18 season". We can therefore expect a further application to be made before 12 August 2017, when the new Premier League season will commence.
Judgment Date: 13 MARCH 2017
ISPs ordered to block access to streaming servers at the time of Premier League games