Live blocking injunctions: a knock-out blow for infringers?
Illegal streaming of live sporting events over the internet is not a new problem. But, given the rate of growth in this activity, sports broadcasters are fighting back. The new weapon in their arsenal is the live blocking injunction.
This is a new legal remedy that can be used to protect valuable rights in broadcast sports footage. The most obvious example is the use of the live blocking injunction by the English Premier League to block servers hosting illegal streams of live Premier League matches. Rights to live broadcasting are the subject of periodic auctions, with the amount raised increasing to over £5 billion for the period 2016-2019. The 2019-2022 deal agreed earlier this year saw Amazon enter the UK market alongside Sky and BT.
Those familiar with this field will know that website blocking orders (where internet users are blocked from accessing specified websites) are not new in the UK market. Earlier cases have dealt with blocking orders against peer-to-peer websites hosting pirated films and music, or those making them available in other ways – bit torrent indexing websites for example. Injunctions have also been granted to trade mark owners, blocking sites that deal in counterfeit luxury goods.
Blocking injunctions are not normally granted against the website operators themselves. These operators are often difficult to identify or effectively enforce against. Instead, orders are made against internet service providers, usually the six main UK retail ISPs, requiring them to block or impede access to the offending websites. They are based on EU legislation and have support from European case law.
A new tool - live blocking injunctions
Although blocking injunctions have proved to be a valuable tool against film and music piracy, they have not served live sports broadcasters as well. A developing feature of the illicit streaming market is the use of different websites, with the live stream switching between them as necessary. Further, consumers increasingly have access to set-top boxes, media players and apps on mobile devices enabling them to access the infringing content by connecting directly to infringing servers via the IP address as opposed to requiring access to a specific website. In these circumstances injunctions against particular websites are ineffective. The live blocking injunction offers a way of tackling this problem.
This kind of injunction is different in three fundamental ways. First, the block which the ISP is obliged to implement applies to whole servers and not specified websites. Second, the ISP is only required to block the relevant server for the length of time that the sporting event in question is being broadcast (for example, while a Premier League match is being played). And third, the list of servers to be blocked is reset regularly (in some cases weekly) meaning that those that no longer meet the criteria are removed, and new ones that are taking over the activity are added. If granted, the order works by requiring ISPs to block internet users’ access to servers hosting infringing streams of live sporting events.
The football cases
The UK’s first live blocking injunction was granted in 2017 in a case brought by the Premier League. The action received support from a list of other interested organisations including Scottish, German and Spanish football leagues, the Rugby Football Union, the PGA European Tour and the Professional Darts Corporation. The injunction targeted streaming servers, but only during the times when live Premier League match footage was being broadcast, and on the basis of a re-set list of target servers every week. As the first of its kind in the UK, the duration of the order was short – it covered the two months up to the end of the 2016/17 football season.
This case has since been followed by similar orders in favour of both the Premier League and UEFA. Again, these orders target streaming servers that deliver infringing live streams of match footage to UK consumers. In granting these orders, the court had an opportunity here to review the effectiveness of its earlier order. The conclusion? The injunction was effective, and there was no evidence of overblocking (see below).
The Matchroom Boxing case
The Matchroom Boxing case is the latest example of a live blocking injunction. This case dealt with live-streamed professional boxing matches, notably the widely publicised fight between Anthony Joshua and Alexander Povetkin on 22 September 2018. Sky currently has exclusive UK broadcasting rights, and makes the matches available to viewers on a standard or, for the most sought-after events, a pay-per-view basis.
One of the most striking things about this court ruling is how short it is. In just a couple of pages the court concluded that Matchroom was entitled to an order lasting for two years. Because fixtures are not organised ahead of a whole season as they are in the case of Premier League matches, the order permits boxing matches to be notified to ISPs four weeks in advance. The decision was based on preceding decisions that explain how and why these injunctions are granted. This case, alongside the later Premier League and UEFA decisions, shows how the remedy has developed over recent years, becoming increasingly streamlined and powerful. In particular, the length of time that orders cover has increased rapidly from the first Premier League case in 2017. Orders have gone from lasting for two months, to whole Premier League seasons, to two years in the Matchroom Boxing case (although boxing matches are less frequent than Premier League fixtures).
How does a live blocking injunction work in practice?
A live blocking injunction involves the identification and blocking by ISPs of illegal pirated streams of content, which is achieved throughout various means. Identification methods include the use of databases of well-known pirate websites and apps used for mobile devices and Kodi (and other) set–top boxes, and the manual tracking of streams. Increasingly, new and highly-sophisticated artificial intelligence fingerprinting and watermarking technologies are also being utilised by ISPs (and rights holders) which that can identify logos, text, faces, football kits and other content and certain metadata on a live, automated basis.
The jurisdiction to grant blocking injunctions requires the court to balance the interests of the copyright owner with those of ISPs and internet users. “Overblocking” describes blocking legitimate activity that does not infringe the rights of the person who is entitled to broadcast match footage, and would include orders which go too far in seeking to achieve the specific objective – here preventing illegal live streaming of sports fixtures. The court was shown evidence in the more recent Premier League cases that the methods being used were effective in controlling overblocking. Some overblocking is inevitable, but it is important for applicants to be able to demonstrate to the court how they will keep this to a minimum.
One of the factors identified as reducing the risk of overblocking, particularly in the most recent Premier League cases, was the fact that the list of servers to be blocked was reset periodically (in the later Premier League cases as often as weekly). This meant that servers were not blocked automatically for longer than a week and that some kind of periodic review of blocked servers was necessary.
Cost of software
The ISPs applying the blocking injunctions require increasingly sophisticated software, the cost of which can be high. ISPs do not normally resist the use of blocking injunctions in appropriate cases. However, if a smaller ISP were the subject of an order it might be more difficult for them to afford to implement and administer the orders. An injunction not being unnecessarily complicated or costly for the ISP to implement was a criterion that the court considered in deciding whether to grant the order in the first Premier League case. This decision formed the basis of later orders. It remains to be seen whether satisfying this criterion will prove problematic if an order is sought against a smaller ISP without the financial capability of one of larger ISPs. We are not aware of applicants being ordered to pay either for the blocking measures or the legal proceedings, although that remains a possibility. The Supreme Court has recently required trade mark owners to pay for some elements of the implementation of a blocking order targeting counterfeit goods websites.
The most important question posed by the recent spate of cases in this area is whether there is now a precedent for the grant of live blocking injunctions in similar situations in future. It seems to us that there is. While each of the various orders have differed slightly from previous ones, the common denominators required for a live blocking injunction are emerging.
It is not yet certain whether the scope of live blocking injunctions will continue to increase and whether the issues of overblocking and the costs of software will present issues for claimants in the future.
While some “teething” issues remain, it is likely that the increasingly ubiquitous nature of illegal streaming of sporting events via the internet means live blocking injunctions are set to become more common in future.