On 8 March 2017, Mr Justice Arnold sitting in the English High Court granted in favour of The Football Association Premier League Limited (“FAPL”) the country’s first “live” blocking order, requiring internet service providers (“ISPs”) to block, in real-time, servers hosting unauthorised live streams of Premier League football matches. The landscape of technology used by infringers has evolved significantly in recent times. Infringers now often make content available directly to enabled devices rather than via a specific website. This evolution from previous forms of blocking order demonstrates how the English courts are prepared to evolve their thinking in order to track advances in the ways that people seek to infringe IP rights, and is a positive sign for rightsholders.
In addition to servers identified by FAPL to the ISPs prior to each match, the order contemplates that FAPL will identify infringing streams in close to real-time during matches and can notify to the ISPs the servers from which those streams emanate nearly instantaneously. Further, the ISPs now have blocking systems which are capable of blocking and unblocking IP addresses during matches, in some cases automatically. In this way the FAPL and ISPs, working together, can target only those servers being used for infringing activity, and only at the time that they are infringing.
Notably none of the ISPs resisted this order; in fact, five of the six ISP defendants in the case positively supported the grant of the order. This was an important factor in the Judge’s mind when deciding whether to exercise his discretion to grant the order. Moreover, many other sporting rightsholders (including the BBC, other football rightsholders in the UK and abroad, the England & Wales Cricket Board and the Professional Darts Corporation) supported the application.
There have been numerous examples over recent years of the English courts granting blocking orders against ISPs in order to prevent users accessing websites hosting material which infringes IP rights. High profile examples of websites targeted by such orders include The Pirate Bay, Newzbin and SolarMovie. For the protection of copyright there is a specific statutory provision giving an English court jurisdiction to grant such orders: section 97A of the Copyright, Designs and Patents Act 1988 (“CDPA”), which implements Article 8(3) of the InfoSoc Directive (Directive 2001/29/EC). The Court of Appeal has held in Cartier (discussed at length in an APKS advisory) that the court has jurisdiction to make such an order in matters of trademark infringement. Mr Justice Arnold’s latest order is a new species of “section 97A” order, reflecting the evolving technology landscape.
A particularly interesting observation in the judgment is that there was evidence before the court that a significantly higher proportion of UK consumers believes that it is lawful to access unauthorised streams using devices like the Amazon Fire Stick or Kodi (together with add-on software) than believes that it is lawful to access unauthorised content via file-sharing websites like The Pirate Bay. Mr Justice Arnold particularly called out the possible educating effect of the order when considering the factors relevant to the exercise of his discretion. Even before the order actually came into effect, the judge may well have been proved to have basis for this, as the granting of the order was very widely reported in the mainstream press – a rare example of provisions of the CDPA being cited in the pages of The Sun and The Mirror. Only time will tell, though, whether the public are indeed educated.
For now, the order is in place only until the final day of the Premier League season, in order that its effectiveness can be reviewed before a new order is sought to cover the 2017/2018 Premier League season. No doubt the other rightsholders who supported FAPL’s application will be ready to seek their own equivalent orders if the order does prove effective, and we will update on any developments and further applications when they happen.