FAPL wins Section 97A blocking order against live streaming services

Now that it has become established practice for content owners to close down P2P sites from which illegal content is downloaded, the battle has moved on to streaming services.

Yesterday Mr Justice Arnold gave judgement in the case of FAPL v BSkyB and others in relation to an application by FAPL against the six major UK ISPs in order to implement site blocking against a website called FirstRow Sports which provides access to streaming of live football matches.

As Arnold J himself puts it "The present application differs from the applications considered in the [previous section 97A site blocking decisions] in a number of respects. First, the applicant and its supporters constitute a different class of rightholder [i.e. football rights rather than movies and music companies]. Secondly, unlike the websites the subject of the previous applications, FirstRow is not a peer-to-peer ("P2P") file-sharing website. Rather, it is a website which facilitates access to streams of television broadcasts of sporting events. Thirdly, as a result, the issues on infringement are somewhat different."

He goes on to apply his own analysis from Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (the PirateBay case).

The key points of difference from the previous cases are the consideration of whether there is a communication to the public, where he applies the reasoning of the ITV v TVCatchup decision and concludes that the P2P live streaming services are a communication to the public and that the communication occurs in (at least) the UK.  He also determines that FirstRow, although only an indexing service and not one which originates the communication to the public, is responsible in law for the communication to the public (or at least jointly liable).  

Accordingly he agrees to issue the orders in the terms sought by the FAPL. 

It is noteworthy that, even though FirstRow did  not appear in the case, Arnold J was careful to satisfy himself that they were responsible for the infringements prior to issuing the orders.