Home goal for FirstRow as FAPL gets injunction but is FAPL’s resistance to live steaming futile?

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In Football Association Premier League Ltd v British Sky Broadcasting Ltd and Others [2013] EWHC 2058 (Ch),[2013] All ER (D) 189 (Jul), the High Court has ruled that a website operating an indexing and aggregation portal to streamed broadcasts of sporting events has infringed copyrights owned by the Football Association Premier League in relation to the broadcasting of Premier League matches. The court granted an injunction under the Copyright, Designs and Patents Act 1988, s 97A against the top six internet service providers in the UK. This injunction was to block access to the FirstRow website which provides access to streams of TV broadcasts of sporting events such as live football matches.

The technical bit

FirstRow does this by offering links on its website to indexed streams provided by third party streamers using user generated content (UGC) websites. These streams are obtained illegally or via a legitimate subscription (which is then misused). When you click on the links, you are taken to a webpage containing live coverage within a ‘frame’ (accompanied by advertising). Alternatively, you can download a free app from the website to your computer that will enable you to access the links.

The legal bit

Because of FirstRow’s operating methods, the issues surrounding the application were slightly different to those seen in previous similar applications. The judge addressed this using the legal framework he had previously set out in The Pirate Bay case (Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch)[2012] All ER (D) 01 (Mar)). In order to make the orders sought by FAPL, it had to establish that: the defendants are service providers; users and/or operators of FirstRow infringe FAPL’s copyrights; users and/or operators of FirstRow use the defendants’ services to do that, and the defendants have actual knowledge of this.

All of these were established in the case. Despite the fact FirstRow was unrepresented, the judge spent 23 paragraphs working through the infringement question.

The infringement question centred on whether FirstRow was responsible for the ‘communication’ of copyright works and whether that communication was to the public. The issue was a technical one—the streams emanated from UGC sites and not from FirstRow itself. However the judge held the scenario was analogous to cases such as Newzbin (Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch)[2010] All ER (D) 43 (Apr)) in that FirstRow was aggregating and indexing a large number of streams, presenting them in ‘frames’ provided by it and providing access links. FirstRow was held to be wholly or jointly liable for the communication.

Communication to the public in the UK was made out with reference to TVCatchup (ITV Broadcasting Ltd v TVCatchup Ltd: Case C-607/11 [2013] ECR-0000, [2013] ECDR 9). Transmission was electronic, made over the internet using specific technical means different from that of the original communication (and the technical means were not there merely, for example, to improve reception). There was an intention to target the public in the UK and the broadcasts were made available to those not legitimately entitled to view.

In terms of clarifying the law in this area, the judge confirmed the existing law on communication. He provided a helpful explanation of FirstRow’s responsibility for the communication even though it was not the originator, using situational and legal analogies from key cases. On communication in the UK, the judge accepted the matters relied on by FAPL, evidencing the intention to target the UK. The list of these matters may be helpful to lawyers acting in this area (para [45] of the judgment).

So what?

The law in this area is having to react to sophisticated and fast-moving technical challenges in order to deliver legal protection to rights holders. This case, and the others mentioned in it, show legal progress being made, however the long-term prognosis for actual protection and enforcement of IP rights in these situations is poor with companies like FirstRow in the marketplace. Prognosis is also poor because the financial incentives available to those in file sharing or streaming sites of this nature are in the hundreds of thousands or millions so many are prepared to take the risks.

For example, a search for the term ‘The Pirate bay’ at the time of writing produced search results that would suggest that the orders in the UK and elsewhere blocking The Pirate Bay website have not been effective. In most countries, blocks have been circumvented relatively easily. When these types of URLs are blocked, numerous proxy servers emerge to make the website(s) available. Users are quickly redirected to websites that show them which proxies are blocked and how to work around this, or they obtain virtual private network (VPN) subscriptions at low cost which claim to encrypt and secure users’ internet traffic as well as unblocking sites.

Joshy Thomas is a solicitor in the Lexis PSL®IP & IT team

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