Last week, The Premier League obtained a new High Court injunction that will enable it to block streams delivered to the public via Kodi and similar devices.
The details made available at the time suggested this injunction was something new, beyond the scope of earlier site-blocking orders.
After obtaining and digesting a copy of the injunction yesterday, we can now report that this is something very special indeed. Not least, it provides a unique view into a future where ISPs are not only Internet gateways but also content providers with a vested interest in what their subscribers can view online.
In broad terms, The Premier League wants to stop the public from watching unauthorized live streams of their matches online, many of them through Kodi and similar tools. However, since these are by definition live, they need to be able to react quickly to shut them down. It’s a unique problem that has found a unique solution.
The ‘defendants’ in the case (and we use the term extremely loosely) are the UK’s leading ISPs – Sky, BT, Virgin Media, Plusnet, EE and TalkTalk – all of which are suppliers of Premier League content to the public. It is crystal clear that the ISPs had a vested interest in this injunction being granted.
“All of the Defendants have been involved in negotiations over the terms of the Order, with the result that the wording of the Order was agreed,” the injunction reads.
As detailed in our earlier report, rather than targeting websites, this injunction targets the servers streaming the content. As a result, this case involves the blocking of IP addresses of streaming servers, most of which are located overseas.
“A timely response is important in the case of Premier League matches because, to be effective, any intervention must occur during the course of a match. The operators of streaming servers regularly change the IP addresses from which the servers operate,” the High Court notes.
Before presenting its evidence to the High Court, the Premier League (FAPL) hired an unnamed anti-piracy company to monitor infringing streams for a number of weeks. During this process, it identified “a large number” of IP addresses from where infringing content was made available.
From here, the FAPL identified a subset of streaming servers it now wants to be blocked. It used three criteria to select them but the Court has chosen to keep those details a secret, “because if they were made public it would make it easier for the Order to be circumvented.”
What we do know is these servers can only be selected 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.”
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.
And of course, this is where things get a little bit unusual. While ISPs like BT, Sky, and Virgin Media are defendants in the case, it’s notable in the injunction that the Court speaks about their rights as broadcasters being infringed. That they have a vested interest and have been working with FAPL is even more evident when one reads about some of the information they appear to have been sharing.
In discussing the merits of the case, the High Court asks whether copyrighted content has been distributed to the public in the UK, raising several points of fact in support. One in particular raises eyebrows.
“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.”
The above is framed as if the ISPs have only monitored incoming server traffic, but someone has to request that data and the ISPs clearly know which customers are doing that. After all, they’re making the connections. Given the text, it seems reasonable to conclude that the ISPs, one way or another, are monitoring which servers their customers are accessing.
“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,” the High Court notes.
“Deliberate consumer activity of this kind [emphasis ours] 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.”
The Court further underlines with the following:
“The [ISPs] have actual knowledge of the infringing use of their services as a result of detailed pre-application correspondence, monitoring some of the Defendants have themselves carried out, notices sent by the Premier League, and more recently service of the application and accompanying evidence.”
In granting the injunction, the High Court considered whether doing so would negatively affect the ISPs’ ability to do business. It needn’t have worried.
“Five of the Defendants [TalkTalk only agreed not to oppose] positively support the making of the Order. [This] is strong evidence that it will not impair their freedom to carry on business,” the injunction notes, adding that no ISP made an application for costs.
Of note is the short duration of the injunction. It comes into force on March 18, 2017 and lasts until May 22, 2017, when the football season ends. This short term is intended as a trial period of sorts. If all works out, the FAPL will apply for a new injunction that will cover the 2017/2018 season.
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. Whether the latter will still be achieved is open to debate.
