December 7, 2022

Volume XII, Number 341

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Premier League scores second ‘live’ blocking injunction

In May 2017, Sports Shorts covered the first ‘live’ blocking injunction ordered by the High Court in favour of the Premier League – a decision which represented a win not only for rightsholders but also, unusually, for the defendant ISPs in their capacity as Premier League rightsholders.  The order, which applied during the final weeks of the 2016/17 season – a ‘test period’ of sorts – required UK internet service providers (“ISPs”, such as Sky, BT, etc.) to block specified providers of copyright infringing streams of Premier League matches and (most importantly) to do so effectively on a ‘live’ basis.

This week, the Premier League announced that, following the “highly effective” first order, pursuant to which “more than 5,000 server IP addresses blocked that had previously been streaming illegal Premier League content”, it has secured a second live blocking order from the High Court.  The second order will apply for the entirety of the 2017/18 season.

By way of reminder, the injunction (or “blocking order”) was the first of its kind thanks to a number of key features:

  1. It was a “live” blocking order, which had effect only at the times when Premier League matches were being broadcast (something which was enabled by new video monitoring techniques developed and used by both FAPL and the ISPs to enable the detection and blocking of infringing streams on a near-live basis);
  2. It provided for the list of targeted servers to be “re-set” each week during the Premier League season, thereby enabling new servers to be identified by FAPL each week and notified to the ISPs for blocking, as well as ensuring that servers would not continue to be blocked each week if they were no longer sources of infringing footage;
  3. The order applied for a short period (from 18 March 2017 until the end of the Premier League season on 22 May 2017), which was designed to act as a sort of test period, leaving room for an assessment of the order’s effectiveness with a view to FAPL applying for a similar order to cover the entirety of the 2017/18 season (the order that has now been granted); and
  4. In addition to the usual statutory safeguards included within these types of orders (known as “Section 97A Orders”), it required a notice to be sent to each hosting provider each week when one of its IP addresses was being blocked. The operators of the target services were given permission to apply to court to have the order set aside or varies.

Whilst the first Order was ground-breaking from a legal perspective, the real win for the Premier League is securing the second order for a period covering the entirety of the 2017/18 season.  Indeed, the Premier League has stated:

“This blocking Order is a game-changer in our efforts to tackle the supply and use of illicit streams of our content,” said Premier League Director of Legal Services, Kevin Plumb. “It will allow us to quickly and effectively block and disrupt the illegal broadcast of Premier League football via any means, including so called ‘pre-loaded Kodi boxes’.

“The protection of our copyright, and the investment made by our broadcast partners, is hugely important to the Premier League and the future health of English football.

“The ability that clubs have to develop and acquire talented players, to build and improve stadiums, and to support communities and schools is all predicated on being able to market, sell and protect commercial rights.

“We are pleased the Courts have recognised this with the granting of this significant blocking Order.”

As Arnold J noted in his judgment when granting the first order earlier this year, owners of valuable copyright such as the Premier League have increasingly been faced not only with the challenges presented by developing technologies such as Kodi and other devices which allow people to connect directly to streaming servers via their IP addresses (rather than via websites) but they also with the fact that many consumers no longer appreciate that gaining access to Premier League matches via these means is unlawful.  Indeed, a recent BBC survey found that nearly 50% of fans say they have streamed a match online through an unofficial provider with at least a third doing so at least one a month and, moreover, just under a third of fans did not know whether it was illegal to stream live Premier League matches from such sources.

It will be interesting to see not only whether the success of the blocking order continues throughout the 2017/18 season but also whether such a change in the availability of streams will serve to educate fans on their unlawful status.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 209
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