A recent UK case shows how court orders mandating ISPs to block access to IP numbers hosting allegedly infringing websites can go wrong. The London High Court, Chancery Division, upon a claim from the Football Association Premier League (“FAPL”) and related organizations, issued an injunction against the six main UK retail ISPs – which own close to 100 percent of the UK Internet users’ market share – to block access to the FirstRow Sports website (“FirstRow”). FirstRow “facilitates access to streams of television broadcasts of sporting events.” Basically, it offers services similar to those of Rojadirecta, whose activities we have reviewed in a previous post.
However, rather than suing FirstRow, the claimants sought an injunction against the ISPs pursuant to Article 97A of the UK Copyright, Designs and Patent Act 1988, which implements Article 8 (3) of the Information Society Directive of 2001 (InfoSoc Directive). That Article provides that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” The UK implementation of the InfoSoc Directive authorizes courts to enjoin ISPs with “actual knowledge” of a third parties’ infringing activity. Amongst other circumstances, ISPs have “actual knowledge” if the ISP has received a notice including the name and address of the sender and details of the infringement in question.
The Premier League/FAPL case is the most recent in a long list of cases that lead to the blocking of major websites in the UK territory. The same London Court held for the first time in 2011 that it was appropriate to order ISPs to block in the case of Twentieth Century Fox Film Corp v British Telecommunications. The terms of that order were determined shortly thereafter in a second case involving the same parties. Later, similar orders were issued against ISPs to block access to The Pirate Bay website, in Dramatico Entertainment v British Sky Broadcasting, and three other websites -- KAT, H33T and Fenopy -- in EMI Records v British Sky Broadcasting. So far, the UK courts have always issued the blocking orders sought by copyright owners.
The procedural arrangement in these cases is peculiar. The allegedly infringing parties are not part of these lawsuits. Only the ISPs are. The alleged infringers are not given the opportunity to defend themselves in court, yet, the court must first find that the activity in question is infringing. Additionally, the defendants in these proceedings – the ISPs – may or may not oppose the blocking orders. With the exception of the first case reviewing the appropriateness of blocking orders in principle, ISPs have not opposed the orders and have agreed with the claimants in advance to the terms of the orders. The ISPs may argue over the scope and proportionality of the order, but there is no adversary incentivized to challenge the initial finding of infringement, which increases the likelihood that those decisions will be overbroad or erroneous.
For example, in determining whether FirstRow infringed the FAPL’s copyrights, a complicated decision as we see from the Rojadirecta case, the London High Court ruled based on FAPL’s evidence and expert witness submissions only.
One of the thorniest questions is whether sites that link to streams are responsible for communicating copyrighted works to the public. In order to answer this question, the London High Court applied the findings of the European Court of Justice in ITV Broadcasting v TVCatchup, confirming that any retransmission of a terrestrial television broadcast over the Internet constitutes a communication to the public. Based on the ECJ ruling, the Premier League Court held that, although the technical effect of clicking on the link is to direct the stream from the UGC site to the users’ computer, (i) the aggregation of a large number of streams, (ii) the indexing of those streams for the convenience of the users, (iii) the provision of a simple link to click in order to have access to the stream, and (iv) the fact that the stream is presented in FirstRow's frame or window makes the site directly liable for the communication. The Court placed special emphasis on fact that the streamed events were presented in a frame provided by FirstRow.
Additionally, the Court found that even if FirstRow were not a direct infringer, it would be jointly liable with the operators of the user generated content (UGC) websites that host the embedded streams and with the third party streamers who digitally capture the streams and do the embedding. In previous rulings, UK courts have already held that “two or more persons may participate in a common design to infringe [copyright] rendering them jointly liable.” Here, the High Court emphasized the fact that all the joint tortfeasors were motivated by a financial reward. The Court noted that FirstRow is likely to be generating between £5,360,680 and £9,505,564 in annual revenues from advertising and affiliated revenues. Additionally, many of the UGC streamers are motivated by the revenues they receive from adding their own advertisments to the streams.
The Court’s factual assumptions and legal conclusions are based on evidences and contentions provided by FAPL only. No one presented any evidence or arguments to the contrary. Although, indeed, the Court has full power to exercise its discretion in evaluating FAPL’s evidences and contentions, the absence of any contradictory evidence or arguments may raise due process concerns. The Court justified the absence of the affected websites in the litigation by saying, “given the difficulty of identifying, let alone bringing proceedings against, the operators of FirstRow, no other effective remedy is open to FAPL in this jurisdiction.” Still, even though it may be difficult to identify or take to court alleged infringers, that is the remedy that should be tried first. A blocking order should be issued only after a full-flagged review of the copyright case has occurred in a proceeding started against the alleged infringers, rather than the ISPs. Otherwise, operators of the target website can only apply for the modification or discharge of the order after their services have been already interrupted.
After finding that FirstRow was either directly or contributorily liable for infringement, the Court instructed the ISPs to prevent access to a list of IP address numbers provided by FAPL and allegedly used by First Row. However, one of the blocked IP numbers was shared with hundreds of legitimate sites via the DSN Made Easy’s redirection service. Once the IP address was blocked, access to all the websites using the redirection service, spanning from BBC’s Radio Times to the search engine DuckDuckGo, was immediately shut down.
Faced with the disgruntled reactions of users and website owners, the ISPs stopped blocking that IP address shortly thereafter. Although the websites were only temporarily blocked, the implementation of the practical terms of the order nonetheless leave room for abuse. The rightholders tell the ISPs which IP addresses to block, and the ISPs comply without counterchecking the list in order to avoid blatant mistakes. Only after the ISPs realize that the instructions given by the rightholders to block a particular IP address do not meet the criteria of the court order and cover the IP number in error, they will re-enable access. If they do not do so, the Premier League ruling provides that “the operators of any other website who claim to be affected by [the blocking] order [ . . . ] are to have permission to apply to vary or discharge [the order].”
However, leaving to the rightholders the identification of the IP addresses to block may turn out to be an unsatisfactory arrangement. It is clear that the rightholders have an interest in blocking as many potentially infringing IP addresses as possible. If they are empowered to do so with a certain level of discretion by a court order, which is shielding them, and the ISPs, form liability, mistakes may easily ensue. At this point, innocent websites and users are forced either to depend on the ISPs to voluntarily restore their access to the Internet or face all the hurdles involved in seeking judicial redress.
In sum, under present UK law, a website indexing and linking to streamed sporting events is directly liable for communicating to the public protected works. Alternatively, that website is also jointly liable with the websites generating the streams and the third party streamers for participating in a common design to infringe.
Therefore, if proper notice of the infringement is given to the ISPs, a court order against the ISPs to block access to the indexing site is proportionate and appropriate. Meanwhile, a few hundred sites may be taken down by mistake, but those are friendly fire. We are at war after all.
 FirstRow does not transmit or generate any of the streams. The streams are digitally captured by third parties watching the broadcast on a television set or a computer. Those streamers send the captured broadcast in real time to a User Generated Content (“UGC”) website’s server, which is used by the streamers to create an “embed code” enabling the stream to be embedded into FirstRow. At this point, the streamer submits the embed code to FirstRow and, upon acceptance by FirstRow, the embed code is listed on FirstRow as a link, which other users can click to watch the stream.