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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> The Football Association Premier League Ltd v British Telecommunications Plc & Ors [2017] EWHC 480 (Ch) (13 March 2017) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2017/480.html Cite as: [2017] ECC 17, [2017] EWHC 480 (Ch) |
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CHANCERY DIVISION
Fetter Lane, London, EC2A 1NL |
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B e f o r e :
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THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED |
Claimant |
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- and - |
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(1) BRITISH TELECOMMUNICATIONS PLC (2) EE LIMITED (3) PLUSNET PLC (4) SKY UK LIMITED (5) TALKTALK TELECOM LIMITED (6) VIRGIN MEDIA LIMITED |
Defendants |
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Jaani Riordan (instructed by in-house solicitors) for the First, Second, Fourth and Sixth Defendants
The Third and Fifth Defendants did not appear and were not represented
Hearing date: 8 March 2017
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Crown Copyright ©
MR JUSTICE ARNOLD :
Introduction
i) British Broadcasting Corporation and BBC Worldwide Ltd;
ii) DFL Deutsche Fußball Lega GmbH;
iii) Liga Nacional de Fútbol Professional;
iv) The Football Association Ltd;
v) The Scottish Premier League Ltd;
vi) The Football League Ltd;
vii) England and Wales Cricket Board Ltd;
viii) PGA European Tour;
ix) The Professional Darts Corporation Ltd; and
x) Rugby Football Union.
The law
FAPL and its rights
The Defendants
i) The First Defendant ("BT") is one of two exclusive licensees of broadcasting and internet transmission rights for Premier League footage in the UK.
ii) The Second Defendant ("EE") is a wholly owned subsidiary of BT.
iii) The Third Defendant ("Plusnet") is also a wholly owned subsidiary of BT. It has not previously been the subject of an order under section 97A, but has similar blocking technology to BT and EE.
iv) The Fourth Defendant ("Sky") is the other exclusive licensee of Premier League footage in the UK.
v) The Fifth Defendant ("TalkTalk") retransmits licensed channels containing Premier League footage to its subscribers.
vi) The Sixth Defendant ("Virgin") likewise retransmits such channels to its subscribers.
Confidentiality
Background to the present application
The Order
i) The video monitoring technologies used by FAPL now permit the identification of infringing streams with a very high level of accuracy in close to real-time during Premier League matches. The servers from which such streams emanate can be notified to the Defendants nearly instantaneously.
ii) Advances in certain of the Defendants' blocking systems will allow them to block and unblock IP addresses during the course of Premier League matches, in some cases automatically. If this process is automated, or if manual supervision can be provided at the relevant times, that would mean that blocking can be responsive to changes in the IP addresses being utilised by the operators of streaming services at the times when blocking is most needed to protect the rights in question. It would also mean that blocking need not occur outside of match times.
Jurisdictional requirements
Are the Defendants service providers?
Do the operators and users of the Target Servers infringe FAPL copyrights?
i) A very substantial volume of traffic from BT, Sky and Virgin, who are the three largest UK ISPs, has been recorded from these servers during Premier League match times. The extent of these spikes in traffic, the closeness of their correlation with each scheduled match, and the absolute volume in terms of raw bandwidth consumed, are only consistent with large numbers of consumers obtaining Premier League content from these servers.
ii) The traffic spikes are sustained throughout the period of each Premier League match. By and large, the bandwidth (and therefore interest) lasts for precisely the same period as the match, with an immediate drop-off thereafter. Deliberate consumer activity of this kind is strongly indicative of the fact that a substantial proportion of the relevant UK public regards the Premier League content on these servers as directed to and meant for them.
iii) The only other spikes in UK traffic that have been observed have occurred during the broadcast of other sporting events on subscription TV (such as World Championship Darts and the English Football Championship), all of which would also be of interest to viewers in the UK.
iv) While it is not possible to know what the overall traffic is to the Target Servers worldwide, it is reasonable to assume that traffic of this magnitude accounts for a substantial proportion of all communications with the Target Servers.
v) In many cases, the channels being offered on the Target Servers reproduce licensed UK subscription channels that carry Premier League content, which are themselves deliberately targeted at UK consumers.
vi) Where the streams are embedded into websites, they commonly have advertising targeted at UK consumers.
Use of the Defendants' services
Actual knowledge
Should an order be made?
The comparative importance of the rights engaged and the justifications for interfering with those rights
Effectiveness and dissuasiveness
Substitutability
Alternative measures
Not unnecessarily complicated or costly
Avoidance of barriers to legitimate trade
Safeguards
Proportionality
Conclusion