The Football Association Premier League Ltd v British Sky Broadcasting Ltd and others [2013] EWHC 2058 (Ch), Chancery Division, England and Wales, 16 July 2013
Journal of Intellectual Property Law & Practice (2013), doi: 10.1093/jiplp/jpt165, first published online: September 26, 2013
Section 97A blocking injunctions are fast becoming an established weapon in the previously ineffective arsenal of rightsholders seeking to curb online piracy. For the first time the jurisdiction has been relied upon by the sports industry, to protect the lucrative rights to broadcast Premier League football and other major sporting events against streaming website firstRow1.eu.
Legal context
Internet piracy is tough to fight. There are too many individual infringers to sue. The pirate websites themselves set up out of the jurisdiction; cloak themselves in anonymity; refuse to engage with legal processes and generally make themselves very unattractive targets for litigation. Fortunately, s 97A of the United Kingdom's Copyright, Designs and Patents Act 1988 (CDPA) allows rightsholders to request that the High Court order the UK's ISPs—of which there are only a handful serving most of the country—to block their subscribers from accessing an infringing site in the first place. No access, no infringement.
Facts
Section 97A of the CDPA provides that ‘[t]he High Court … shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.’ This provision was implemented to comply with the Information Society Directive (2001/29). This author has covered previous uses of this power in articles such as ‘A triple strike against piracy as the music industry secures three more blocking injunctions’, to which readers are referred for background [Darren Meale ‘A triple strike against piracy as the music industry secures three more blocking injunctions’ (2012) 8(8) JIPLP, 591–594].
FirstRow's exploits have led to it becoming the 268th most popular website in the UK, ahead of such household names as lastminute.com and ft.com. Despite claiming that its service honourably allows impecunious fans to enjoy sport, FirstRow was estimated by FAPL to be making between £5 million and £10 million a year in advertising revenues from adverts shown before and alongside streams.
Analysis
Like the most recent rounds of s 97A applications, this was a one-sided piece of litigation. FirstRow was not involved. The UK ISPs did not appear and were not represented. The terms of the orders sought had been agreed with the ISPs beforehand, and so it fell to Mr Justice Arnold to determine whether the orders sought were justified. He did so on paper, without a hearing.
Four matters needed to be established if a block was to be ordered. Each was carefully considered by Arnold J. As the law and circumstances in this case were very similar to the previous s 97A applications (see the references to earlier articles above), three of the four matters will be covered only very briefly:
Were the ISPs ‘service providers’?
Yes there were, as the ISPs accepted. See r 2 of the Electronic Commerce (EC Directive) Regulations 2002, implementing the E-Commerce Directive (2000/31).
Do the users and/or the operators of FirstRow infringe copyright?
Unlike in the earlier cases, FirstRow was not a site involved in peer-to-peer file-sharing using BitTorrent or similar technology, but the infringement issues were highly similar. The court found that FirstRow's operators infringed. Users who were publicans who used FirstRow to show matches in their pubs infringed as well. The court's reasoning is considered below.
Do the users and/or the operators of FirstRow use the ISPs' services to infringe?
Arnold J answered this question in the affirmative following his reasoning in the earlier blocking cases.
Did the ISPs have actual knowledge of this?
Yes, following receipt of letters before action sent to them on 7 June 2013.
Infringements of copyright by FirstRow and its users
The majority of the judgment was taken up by consideration of this question. The court addressed the following: the infringing acts that might be relevant, including communication to the public within s 20 of the CDPA; whether the prerequisites for a communication to the public were met; and whether there was a communication to the public in the UK.
Infringing acts
The key act of alleged infringement of copyright in most internet-concerned cases, as in this one, is that of communication to the public. No allegation of straightforward copying was raised in light of the UK Supreme Court's decision—or in the referral to the Court of Justice of the European Union (CJEU)—in Meltwater [2013] UKSC 18. In this case the Supreme Court concluded that users who merely browse the internet do not infringe copyright in the material they browse by reason of the exemption under Article 5(1) of the Information Society Directive. That exemption covers temporary acts of copying which are, amongst other things, transient or incidental. The Supreme Court's conclusion might well extend to users who view streams, if the CJEU agrees with it.
Prerequisites for communication to the public
Case law (much of it from the CJEU) imposes a number of prerequisites before a finding of communication to the public can be made, including that there needs to be a ‘communication’ and a ‘public’. Consideration of these points took into account the CJEU's recent decision in Case C–607/11 ITV v TVCatchup, 7 March 2013, where that court interpreted ‘communication’ broadly, adding that ‘public’ referred to an indeterminate number of persons and implied a fairly large number of persons. In cases such as Case C–306/05 SGAE [2006] ECR I–11519, the CJEU had previously established that such public also had to be ‘new’. In TVCatchup, the CJEU performed a classic side-step, holding that this was not required where a television broadcast is re-transmitted via the internet. The reason given for this (which is a half reason at best) is that this was because such re-transmission is a separate communication to the public by a different technical means to the original broadcast.
Arnold J quickly concluded that these prerequisites were fulfilled in the present case. He additionally considered whether FirstRow was actually responsible for the communication of the streams, given that it merely linked to other streaming sites. It was, taking into account the interventions of FirstRow in aggregating, indexing and linking to streams for the convenience of users. He also concluded that FirstRow was jointly liable for the communication by the other streaming sites.
Communication to the public in the UK
Earlier decisions established that FirstRow must be shown to be targeting the UK public if there was to be a communication to the public in the UK. The judge concluded it was, on the basis of a number of factors including that the site is in English (not an overwhelming factor, given the ubiquity of the language online and in the real world); that FirstRow's advertising was by UK companies (which, this author notes, might actually be the responsibility of an independent adserving company, rather than FirstRow); that Premier League matches are popular in the UK (as they are in many other countries); and that FirstRow is very popular with UK users (even though nearly 8.5 million of its 10 million or so users were from outside of the UK). No doubt FirstRow targeted the UK (it probably targets everyone everywhere in its quest for ad revenue), but these factors essentially indicate that FirstRow's content is popular in the UK. That is not the same as saying that FirstRow is doing anything consciously to target it.
Having come to decisions on all four ingredients for a block, Arnold J determined that it was proportionate to order a block in this case on much the same basis as the blocks he had previously ordered. The parties had included wording in the draft order permitting the operators of FirstRow to apply to vary or discharge the order if they could show grounds to do so. He felt it beneficial to include this wording in future blocking orders.
Practical significance
With this victory, there have now been six reported victims of the music, film and sports industry: Newzbin2, The Pirate Bay, KAT, H33T, Fenopy and FirstRow. Arnold J's judgment also refers to an order against a seventh, torrent site EZTV, an order of Mann J (which does not yet appear to have been reported). The BBC reported in July that websites YIFY, Movie2K and download for all have also been blocked, bringing the total to 10. Another 25 or so websites are reportedly on a music and film industry hit-list, some of which have recently received cease and desist letters from the British Recorded Music Industry.
It therefore looks as if the High Court judiciary in England and Wales will be kept fairly busy entertaining s 97A injunction applications for the foreseeable future. Compared with other court business, the process for obtaining these injunctions now appears fine-tuned. Obtaining a block is also likely to be reasonably low-cost, certainly compared to obtaining other forms of relief against infringers. It is also quick: letters before action were sent out on 7 June 2013; judgment was given less than six weeks later.
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