from the whose-side-are-the-ISPs-on-these-days? dept
As we noted last week, one of the main copyright battlegrounds in the UK concerns the use of Kodi boxes -- low-cost devices running the open source Kodi multimedia player, usually augmented with plug-ins that provide access to unauthorized content. One of the popular uses of such Kodi boxes is to watch live streams of sporting events. TorrentFreak reports on an important new court order obtained by the UK's Football Association Premier League (FAPL) to prevent people from viewing live streams of soccer games free of charge. The problem for the FAPL is that the addresses of the servers streaming matches are often only known once the games begin. To meet that challenge, the court has granted a new kind of injunction: one that allows live blocking. Here's how it will work:
servers can only be selected [for blocking] by FAPL if it "reasonably believes" they have the "sole or predominant purpose of enabling or facilitating access to infringing streams of Premier League match footage." Secondly, the FAPL must not know or have reason to believe "that the server is being used for any other substantial purpose."
In other words, the servers must be dedicated to live streaming rather than doing it incidentally alongside other, possibly more legitimate, activities.
This caution is needed because this injunction will be carried out live, as soon as matches begin to hit the Internet. FAPL and its anti-piracy contractor will monitor the Internet, grab IP addresses, and ask the ISPs to block them in real-time. No court will be involved in that process, it will be carried out at the discretion of the FAPL and the ISPs.
Giving the FAPL the power to ask for any IP address to be blocked as it sees fit, and without a court order, is bad enough, but the TorrentFreak post points out some other extremely troubling features of this latest decision. It explains how the FAPL hired an "anti-piracy" company to monitor unauthorized streams. It seems that leading UK ISPs helped by providing data about download patterns:
"A very substantial volume of traffic from BT, Sky and Virgin, who are the three largest UK ISPs, has been recorded from these [infringing servers] during Premier League match times," the injunction reads.
"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."
This information is also "only consistent" with those three ISPs actively helping the investigation of streaming servers. As TorrentFreak points out:
Overall, this injunction provides a clear indication of what can happen when ISPs stop being "mere conduits" of information and start becoming distributors of entertainment content. In the case of Sky and BT, who pay billions for content, it would be perhaps naive to think that they would've behaved in any other way.
Indeed, this case has all the hallmarks of companies agreeing to take action together and then going through the formalities of an injunction application to get the necessary rubber stamp and avoid criticism.
If confirmed, that's a terrible development. It would mean that the ISPs with investments in material that customers view over their connections no longer see themselves as neutral "mere conduits," but now are on the side of the copyright industry.
The legal blog IPKat points out another important aspect of this latest case. It seems to be the first time that the awful GS Media ruling by the Court of Justice of the European Union -- that a link posted "for profit" can be considered direct infringement -- has been applied in the UK. The judge in this live streaming case wrote:
Generally speaking, the operators of the Target Servers are not merely linking to freely available sources of Premier League footage. Even if in some cases they do, the evidence indicates that they do so for profit, frequently in the form of advertising revenue, and thus are presumed to have the requisite knowledge for the communication to be to a new public.
Expect to see more of these live blocking orders in the UK as the copyright industry there continues to wage its war on the popular Kodi boxes. The question is, will courts in other EU countries start to use them too?