Israeli Judge: Watching Streaming Games Online Is Fair Use

from the wow dept

The entertainment industry has, in the past, accused Israel of not properly respecting copyright, but Israeli officials, rather than bending to the will of Hollywood lobbyists hit back with a long and detailed response, noting that its copyright law has already been influenced too much by American-style copyright law -- and just because they didn't go completely draconian and implement a version of the DMCA, it doesn't mean they don't have strong copyright laws. You have to imagine, however, that Hollywood's lobbying community is about to go ballistic after reading a recent decision (sent in by a ton of people -- including one of the lawyers involved in the case!) concerning an attempt by the Premier League to unveil the owner of a website, LiveFooty, that allowed people to watch streaming football (soccer for folks on this side of the Atlantic) matches.

Now, we've already covered incredibly aggressive legal strategy of suing any site that lets people stream its matches. Quite often, it goes after service providers rather than the actual users, and also goes after services in places where the games aren't viewable anyway (so it's not even taking away any real revenue). Either way, the judge in an Israeli district court was not impressed and tore apart the Premier League's arguments:
the Tel Aviv District Court ruled that it was a case of "fair use" since no profit was made from the broadcasts and that, in Israeli law, breach of "broadcasting" copyright only referred to cable or wireless transmission and not streaming over the internet.

The judge, Michal Agmon-Gonen, furthermore ruled that the site had important social aims -- "watching sports events is socially important and should remain in the realm of mass entertainment, and not just be for those who can afford it" -- and argued that those who view online were not damaging the revenues of broadcasters. She said they were mainly "those of small means or who are not sufficiently interested in sport to pay".
That's the report from the Guardian, but the full ruling from the judge gets a lot more interesting. In refusing to reveal the name of the owner of the site, she talked about the importance of not giving in to the chilling effects of copyright infringement claims, and the importance of setting a very high bar on such things:
"Someone who claims breach of copyright must meet two conditions. The first is to present prima facie evidence of a breach, that will lead with a high degree of probability to proof of it. Secondly, the breaches claimed must be especially severe, wrongs committed in aggravated circumstances," the judge said. This is because "unintentionally, millions of people infringe copyright every day; there are no grounds for disclosing their identities in such cases, but only when it is a matter of blatant and severe infringement."
As far as I know, this is the first time I've seen a judge highlight unintentional infringement, and the chilling effects of making it such that anyone needs to constantly look over their shoulder and be afraid that almost anything they do may be judged to be a violation of copyright laws.

The Premier League will certainly appeal, and you can bet that Hollywood lobbyists will soon come out with yet another report claiming that Israel is a "haven for pirates" or some ridiculous claptrap along those lines. One hopes that this thoughtful ruling that focuses on the public's rights will stand up and get recognized for recognizing that copyright isn't just about the rights of the copyright holders, but about the rights of the public too. However, given the history of the entertainment industry lobby, it seems unlikely.
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Filed Under: consumer rights, copyright, fair use, israel, streaming
Companies: premier league

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  1. identicon
    Anonymous Coward, 3 Sep 2009 @ 1:56pm

    Content Makers need reminding

    In the US, *all* rights are granted *by* the people. That principle is enshrined in the US Constitution, perhaps one of the most elegant government incorporation documents ever.

    Copyright is not a natural right, nor is it granted by the government, except in as much as the government acts as an intermediary for the people.

    Natural copyright resides with the people. They grant, from their natural right, a limited copyright to the content creator.

    The sole purpose of this grant is to spur content creators and potential content creators to share their work.

    The business side of it is an unintentional side effect. The product of a business is a "thing". If the business sits on IP, there is no advantage to the people. The IP protection should be revoked in such a case.

    Likewise, if you don't do "the best you can for the people" with the IP, the protection should be revoked.

    This is the tricky part. How to determine "best". Markets are pretty good at that. However, with IP protection preventing someone perhaps more clever from exploiting an idea, the people may be short changed.

    Which means that for our grant, we're not getting the best return.

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