Broadcasting with caution

UK football authorities and broadcasters are increasingly teaming up to prosecute illegal broadcasters, as Carissa Kendall-Windless of EIP explains.

There has been a recent trend of pubs and other businesses being found guilty of illegally airing Sky Sports and incurring large fines. There are two elements to this story because (1) the Football Association Premier League (FAPL) is interested in protecting its copyright (and protecting the investment made by the broadcasting partners); and (2) Sky is interested in protecting the copyright it licenses from the FAPL as well as its own graphics/overlay/broadcasting copyright.

FAPL

The FAPL seems to be focusing on the root of piracy, rather than the end consumer. New set-top box (STB) technology (eg, Kodi boxes, see below) means that piracy is now easier than ever. 

In a judgment in March, Mr Justice Arnold comments that the public are less likely to realise that using an STB to connect to an unofficial stream is unlawful, as opposed to through a web browser as was previously more common.

I am not sure I agree—most people know that these matches are not readily available to watch on terrestrial TV and they have to go to (presumably) licensed pubs to watch them, so how they can then justify thinking it is legal watching an FAPL match through a STB without paying a monthly charge? I don’t think it washes.

It seems that “Rights holders figure that attacking the problem at its source, ie, servers providing access to illicit streams, is a better use of resources than going after end users.”  

Case law

In March, Arnold heard an application from the FAPL which was supported by several other sporting bodies, including the Football Association, the Scottish Premier League, and the Rugby Football Union. The defendants included many of the UK’s major internet service providers (ISPs), most of which supported the application, or at least did not oppose it.

Several of the defendants are themselves licensees of the claimant or the other supporting sporting bodies. The judge granted an injunction requiring the defendants to block access to target servers believed by the claimant to have “the sole or predominant purpose of enabling or facilitating access to infringing streams of Premier League match footage”.

A second order which expanded the number of servers blocked was granted in July.

Sky

Kodi is an open-source media application which originated as a project to develop a media player for the Microsoft Xbox. It allows access to locally stored media as well as streaming services via a variety of plugins. The open source nature of the platform means that essentially anyone can develop a plugin for any purpose, legal or otherwise. The software itself runs on just about any platform, including free and open-source kernels such as Android, Linux and FreeBSD.

This makes it extremely cheap to build low power set-top boxes which run the Kodi software on top of a cut-down version of a free operating system. These boxes don’t allow a user to do anything more than they could do with a PC and a web browser, but the experience is presented in a way which is much more accessible to the average user.

The user interface, for example, is optimised for use with a television style remote rather than a mouse and keyboard. Kodi boxes are sold legally for around £30 ($40) and will typically come with plugins preinstalled which enable access to free services such as BBC iPlayer, or to subscription services such as Netflix which require the user to log in.

Some Kodi boxes also come with plugins preinstalled which enable access to pirate streams. These are known as ‘fully loaded’ Kodi boxes. Amazon, eBay, and now Facebook have all banned the sale of such fully loaded boxes because the ‘add-ons’ which allow you to stream copyright material are illegal, even if the Kodi software itself isn’t.

Unsurprisingly Kodi boxes became very popular (especially those enabling access to pirated content), so people started to take notice. One of the ways rights holders are tackling this is by obtaining court orders compelling ISPs to block access to servers with which the illicit plugins communicate to obtain the pirated streams. Arnold notes this has been effective (as in the July ISP case mentioned above).

Sky (and other licensees) continue to take action against venues which show sport via illicit means, typically securing damages of £10,000, or in the case of a chain of 14 pubs, damages of £90,000 plus costs.

Sky could use the public as its intelligence gatherers by perhaps offering incentives to the public who ‘shop’ pubs/hotels which are illegally broadcasting FAPL matches—Sky membership for a year? Upgrade for a year? These could be regarded as ‘warm leads’ which are then turned into subscribers once the freebie period is up.

Alliance for Creativity and Entertainment

The Alliance for Creativity and Entertainment (ACE) is a global alliance which was set up in June and is looking to fight online piracy (Sky is a member). But until the alliance is up and running properly and measures are put in place (whatever those may be), Sky and the FAPL will have to continue to resort to the UK courts to enforce their rights.

Carissa Kendall-Windless is an associate at IP law firm EIP. She can be contacted at: ckendallwindless@eip.com