Live streaming is a red-hot topic in the Australian IP sphere. In February this year, the streaming of Foxtel’s broadcast of the Mundine v Green fight kicked-off debate around sports rights, streaming and the role of social media as hosts.

In the United Kingdom, the live streaming controversy extended beyond feisty Facebook comments when Arnold J made “live” blocking orders in March (see, Football Association Premier League Ltd v British Telecommunications & Others [2017] EWHC 480).

These orders mean the Football Association Premier League (the FAPL) can monitor the Internet, identify IP addresses streaming live Premier League football and ask ISPs to block them in real time and without Court supervision. The decision relates to the unauthorised live streaming of a licensed broadcast or licensed live stream of the Premier League football, rather than a live stream taken by someone physically at the football ground using a mobile device.

This type of “live” order is the first of its kind and poses fascinating questions about the future of sports streaming and copyright blocking in Australia – fascinating, at least for dual copyright nerd and Manchester United fan like me.

Who were the players?

Tired of being kicked around, the FAPL sought to tackle the rising problem of Premier League footage being live streamed on the internet.

The defendants were a squad of the UK’s major ISPs – British Telecommunications, EE, Plusnet, Sky, TalkTalk and Virgin Media. As most of these ISPs have content supply deals with the FAPL, they had a common interest in giving unauthorised streaming a red-card.

How did FAPL identify the streaming servers?

Prior to the Application, FAPL engaged a contractor to monitor infringing streams of Premier League footage using exciting (but equally confusing) technology known as ‘proprietary video fingerprinting’.

During the monitoring period, the contractor identified IP addresses where “Target Servers” streamed unauthorised Premier League footage. The Order required the Defendant to block these Target Servers immediately.

The FAPL also identified a subset of “egregious infringers”, to be the subject of future blocking orders. Arnold J provided three criteria for identifying these servers, being that FAPL (or 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; and
• not know or have reason to believe that the server is being used for any other substantial purpose.

The third identification criteria was suppressed by Arnold J to avoid circumvention of the Order.

The Order

Before kicking-off his discussion, Arnold J confidently noted the law on copyright blocking injunctions under s 97A of the Copyright Designs and Patents Act (UK) was “fairly well established”. Despite this, his Honour recognised the practical difficulties involved with executing timely blocks on live footage, and sought to sidestep these difficulties by formulating the Order in the following way:

• Save for the immediate blocks, the Order is a “live” blocking order, meaning it only has effect where live Premier League match footage is broadcast. This is possible because:
  • FAPL’s video-monitoring technology identifies infringing streams in close to real-time during Premier League matches; and
  • the ISPs’ blocking systems allow them to block IP addresses during Premier League matches, either automatically or via manual supervision.
• The list of Target Servers “re-sets” each match week during the Premier League season, meaning:
  • FAPL can continuously notify the defendant ISPs of new infringing servers to block; and
  • old servers are unblocked at the end of the week, unless they continue to stream unauthorised content.
• The Order is temporary. It came into force on 18 March 2017 and ends on 22 May 2018 (the end of the 2016/2017 Premier League Season). This short duration “enable[s] an assessment of its effectiveness” so changes can be made for the inevitable Order in the 2017/2018 season.
• The Order requires weekly notices to be sent to each ISP where one or more of its IP addresses are blocked.

What does this mean?

Rights holders must stay on top of technological changes

Arnold J made some interesting comments about the growing tensions between technological advancement and the protection of rights holders. His Honour noted these tensions are exacerbated in the following ways:

• Consumers use many user interfaces like “set-top boxes, media players (such as the popular Amazon Fire TV Stick) and mobile device apps” to access infringing streams, rather than through web-browser middle-men, which (until now) are the typical subject of blocking Orders (see, for example in Australia Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503);
• There is little to no skill required to access and use streaming devices. For example, software which allows access to suitable streams are easy to find, install and use (although, try telling that to my Dad).
• Evidence presented to Arnold J showed that a higher proportion of UK consumers believe it is lawful to access unauthorised streams using devices/software as compared to accessing unauthorised content via file-sharing websites (like the piratebay.com).
• The latest technology allows for high-quality infringing streams (as opposed to the circa-2000 mobile phone footage).
• Lastly, streaming servers are often moved to offshore hosting providers who do not cooperate with right holders’ requests in a timely manner (if at all). In the sporting sphere, most revenue is derived from live footage- this means any meaningful intervention must occur during the match.

ISPs and rights holders have teamed together to tackle streaming

Whilst the ISPs were technically defendants in this case, they clearly had an interest in the outcome and appeared to work very closely with the FAPL. For example, when discussing jurisdictional issues, his Honour stated:

“The [defendants] have actual knowledge of the infringing use of their services as a result of detailed pre-application correspondence, monitoring some of the Defendants have themselves carried out, notices sent by the Premier League, and more recently service of the application and accompanying evidence.”

Later, his Honour considered the effect any Orders would have on the ISPs’ businesses. It was clear this was a non-issue for the parties:“[f]ive of the Defendants positively support the making of the Order [which] is strong evidence that it will not impair their freedom to carry on business.” Furthermore, none of the ISPs made applications for costs.

Ultimately, this decision raises interesting questions in the IP space – is Arnold J’s Order a keeper? Will Australian Courts use s 115A of the Copyright Act to champion “live” blocking orders too?

At IP Whiteboard, we’ll be sure to keep our eye on the ball.