Two recent decisions, one by the English High Court and one by the Court of Justice of the European Union (CJEU) suggest that the days of watching pay TV for free on illegal set-top boxes may be numbered.
The English High Court orders ISPs to block access to streaming servers
On 13 March 2017 the Premier League (FAPL) succeeded in obtaining a High Court blocking order requiring six major retail internet service providers (ISPs) in the UK (BT, EE, Sky, TalkTalk, Plusnet and Virgin) to block their customers’ access to certain live streaming servers. The servers were delivering unauthorised streams of Premier League matches to consumers in the UK, who were picking them up using set-top boxes (e.g. Kodi boxes) and other devices which had been ‘fully loaded’ (i.e. third party add-ons had been incorporated) enabling consumers to access the infringing streams to avoid paywalls and watch for free.
The judgment is noteworthy because, although the court’s jurisdiction to grant website blocking orders was well established, this was the first order to block the streaming servers themselves. The judge, Mr Justice Arnold, explained that consumers are increasingly turning to set-top boxes, media players (such as the popular Amazon Fire TV stick) and mobile device apps to access infringing streams rather than web browsers running on computers, so that the traditional website blocking orders would be unable to prevent the growing majority of infringements. Arnold’s order illustrates the game of catch-up being played by copyright owners and courts in the online environment to stay abreast of the infringers’ use of technology. Under the order the blocking lasts only for the duration of the matches and the ISPs block and unblock IP addresses during the course of the matches, responding to the changes in the IP addresses being used by the streaming services. This very targeted form of blocking is intended to enable the ISPs to stay one step ahead of the infringers without unduly impairing other aspects of their services and impeding other users.
An important tool where the infringers are difficult to find
Blocking orders such as this can provide a crucial tool to stop infringements where the principal infringers, the streaming server operators, are outside the jurisdiction and other methods are ineffective. In this case the FAPL had tried to move against the set top boxes by sending take down notices to online marketplace operators, among others, requesting removal of listings advertising the ‘fully loaded’ set-top boxes, but the judgment notes that this could be difficult because “sellers are becoming more sophisticated” and marketplaces do not always take them down. Criminal prosecutions had also been pursued against sellers of set-top boxes, but it had been difficult to identify the responsible individuals and the police did not wish to pursue every case.
Court of Justice of the European Union (CJEU) – the sale of ‘fully-loaded’ set-top boxes itself infringes copyright
In a far-reaching decision, which will be welcomed by copyright owners, the CJEU held on 27 April 2017 that the sale of a multimedia player (for example, a set-top box) containing add-ons enabling access to infringing streams (as in the FAPL case described above) constituted an infringement of copyright. The CJEU’ s decision arose out of a question referred to the Court by the Dutch Court in a case brought by the Dutch anti-piracy organisation Stichting Brein. The decision will enable a copyright owner, in appropriate cases, to make a direct, claim for copyright infringement, including an injunction and damages, against sellers of such boxes, and this should apply in all EU countries. In cases where the seller is identifiable, therefore, this represents a welcome new right in the copyright owner’s armoury.
The court’s reasoning
The CJEU’s decision is based on the principle that copyright is infringed not only by making copies of a copyright work in question (e.g. a television film) but also by ‘communication to the public’ of the work. The question which arose before the CJEU was whether the sale of the box could be regarded as a communication to the public and therefore copyright infringement. The CJEU held that it could: the add-ons contained hyperlinks to streaming websites giving access to copyright-protected works that had been made available to the public without the consent of the copyright holder. Based on earlier case law such a hyperlink could involve a communication to the public where the link was to unauthorised content and the person providing the link knew or should have known that the content was unauthorised. In this case, by selling the box, the seller had enabled direct access by the purchaser and consumers watching the films to the websites distributing illegal streams. Without the boxes the purchasers would have found it difficult to access the television films in question as they were not easy to find. In these circumstances the Court held that the sale constituted a communication to the public and hence an infringement of copyright.
Watching for free is also illegal
Finally, the CJEU’s judgment confirms that customers buying and using the set top boxes to watch the streamed programmes without paying would infringe copyright. This infringement was based on the fact that temporary copies of the television films would be made on the player and these would be unauthorised copies. The Court held that these copies were not covered by a copyright exception. This clarifies a point about which there has previously been some uncertainty in English law, an uncertainty which had led to a belief in some quarters that watching pay TV for free on ‘fully loaded’ set top boxes was legal. The CJEU case makes it clear that this is not correct. Although it seems unlikely that copyright owners will wish to enforce against individual consumers, the fact that watching for free is illegal has now been widely reported in the popular press, and this may play a part in changing consumer behaviour.
Tom Lingard