High Court Dams the Goal Stream

In Football Association Premier League v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch), the FA Premier League applied for an injunction against the defendant ISPs under the Copyright, Designs and Patents Act 1988, s 97A. The order sought would require the defendants to take measures to block or at least impede access by their customers to a web site known as FirstRow Sports, which operates as an indexing and aggregation portal to streamed broadcasts of sporting events. Although the FA were the only claimant, the application was supported by a number of other rightsholders, including those with rights pertaining to golf, snooker, darts and rugby union. The defendant ISPs (the usual suspects holding 94% of the UK market) did not appear and were not represented.

Notwithstanding the fact that the application was unopposed, Arnold J carefully considered the relevant law to assure himself that there was jurisdiction to make an order in the circumstances. He referred to his judgments in Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch) (blocking order relating to Newzbin2), Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch) and Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch) (orders re The Pirate Bay) and EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch) (blocking three websites called KAT, H33T and Fenopy). What made the application affecting FirstRow especially different was that FirstRow is not a peer-to-peer file-sharing site but a site which facilitates access to streams of television broadcasts of sporting events (although the nature of the applicant rightsholders’ rights were different too).

Perhaps the only mildly difficult issue which the differences gave rise to was whether FirstRow could be said to have communicated the works. Arnold J considers the issues (at [38]-[43]):

38. Is there a communication by FirstRow? FAPL contends that FirstRow communicates FAPL’s copyright works by electronic transmission. In my judgment it is clear from the CJEU’s reasoning in ITV v TVCatchup at [26] and [30] that there is a communication of the works. More specifically, the works are made available by electronic transmission in such a way that members of the public may access the recordings from a place and at a time individually chosen by them within section 20(2)(b).

39. The more difficult question is whether FirstRow is responsible for the communication. FAPL accepts that, in technical terms, the streams emanate from the UGC sites and not from FirstRow itself. FAPL nevertheless contends that both the UGC sites and FirstRow communicate the works.

40. In support of this contention, FAPL relies upon the reasoning of Kitchin J (as he then was) in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] FSR 21 at [125]:

“The defendant has provided a service which, upon payment of a weekly subscription, enables its premium members to identify films of their choice using the Newzbin cataloguing and indexing system and then to download those films using the NZB facility, all in the way I have described in detail earlier in this judgment. This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants’ films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves. As a result, I have no doubt that the defendant’s premium members consider that Newzbin is making available to them the films in the Newzbin index. Moreover, the defendant has provided its service in full knowledge of the consequences of its actions.”

41. FAPL also relies on what I said in EMI v Sky at [46]:

“I would add that I see nothing in Football Dataco v Sportradar to exclude the possibility that more than one person may be involved in an act of communication to the public. In the present situation, the communication to the public involves both the operators of Websites, who provide a mechanism specifically designed to achieve this, and the users, who provide the actual recordings. (Even if I am wrong about this, the operators may still be liable on the grounds of authorisation and joint tortfeasance.)”

42. In the present case the operators of FirstRow have intervened in a manner which, although technically different, is analogous to that of the websites under consideration in those cases. FirstRow aggregates together a large number of streams from a variety of streamers, indexes them for the convenience of the user and provides a simple link for the user to click on in order to access a specific stream. It is true that the technical effect of clicking on the link is to direct the stream from the UCG site to the user’s computer, but even so the stream is presented in a frame provided by FirstRow. In all the circumstances, I consider that FirstRow is responsible for the communication.

43. Even if I am wrong about that, I consider that FirstRow is jointly liable for the communication by the UGC sites: compare EMI v Sky at [71]-[74].

Probably the most relevant additional observation in the judgment for practical purposes concerns publicans who have used FirstRow to show matches to their customers. Holders of rights relating to sports have long seen the control of ‘abuse’ of their rights by publicans as crucial. Arnold J stated (at [49]) that publicans are communicating the works when screening events via FirstRow and this is likely to be a highly significant ruling, although it has to be borne in mind that no publican was a party to the case and no counter-argument was presented.