Tackling illegal streaming: how sports broadcasters are balancing technical and legal solutionsMatt Phillip
The start of the 2018/19 football season coincides with a change in the way viewers are consuming content. An Ofcom report1 published in July confirmed that, for the first time, there are now more subscriptions to streaming services than to "traditional" pay TV services in the UK. This marks a major shift in the UK’s viewing habits, and is of particular note for broadcasters because 16 to 34-year-olds are driving this change.
As viewers continue to move online it is more important than ever for rights holders and broadcasters to take steps to protect themselves from the risks of illegal online streaming. The FA Premier League is leading this fight and the stakes are high – the FAPL licenses TV rights for £1.7 billion annually in the UK alone. If rights holders fail to take steps to combat illegal streaming of their content then this can erode the value of their rights.
This article looks at these trends from the perspective of broadcasters and rights holders, who are constantly trying to adapt and respond to changing technology and the rapid growth of online streaming. It looks at some of the contemporary legal and technical solutions being used by broadcasters to tackle illegal streaming of content. Specifically, it examines:
The scale of the challenge
Recognising illegal content
New methods of distribution
The limitations of legal remedies
The scale of the challenge
Before looking at the solution, it is important to understand the nature and scale of the problem. In the UK, the Intellectual Property Office conservatively estimates that 1 million set-top boxes with additional software to enable illegal downloads have been sold in the UK in the last couple of years. Their research2 also indicates that 25% of UK internet users have consumed at least one item of online content illegally within the past three months.
Recognising illegal content
New products and providers have made it easier for consumers to access illegal content. In November, the UK IPO published guidance3 targeted at devices like “Kodi”, which is free, legal software that enables users to organise their media. Whilst Kodi itself is legal, third-party developers have created add-ons that allow illegal streaming. The IPO guidance tries to identify how consumers might recognise “illicit streaming”. It says:
“If you are watching television programmes, films or sporting events where you would normally be paying to view them and you have not paid, you are likely to be using an illicit streaming device (ISD) or app.”4
This definition does not reflect the highly fluid nature of the streaming market. Illegal streaming that has kept pace with broadcasters and, in many cases, surpassed it. Traditional broadcasters also need to recognise that developments to their own content distribution can make it more difficult for consumers to identify illegal content online. Broadcasters are continuing to increase their own distribution channels in an attempt to compete with providers like Netflix and Amazon Prime. In some cases this includes providing premium content for free. For the last three years BT Sport (a subscription service) has streamed the Champions League final for free on its YouTube channel. As consumers are presented with more ways to view content, the reality is that there is no simple way for them to know whether they are doing so legally.
New methods of distribution
The 2018/19 football season also coincides with the recent rise in the use of social media platforms like Facebook Live, Periscope and Twitter as a channel for live online streaming (discussed in more depth in Andrew Ryan’s article: Sports media rights in 2018 – consumption trends and the growing influence of OTT digital players’5). This creates unique challenges because of the potential for a high volume of illegal streams that reach a comparatively small audience within the infringer’s social network. This type of infringement can range from a single viewer live streaming paid content to a few friends using their smartphone, to higher quality streams that FACT in the UK associate with organised crime.6 The volume and variety of this type of streaming means that traditional legal responses are often unsuitable, as the laws around illegal broadcasting were not written with these modern challenges, such as the concept of illegal broadcast by individuals via mobile devices.
The legal position in relation to illegal streaming of content has developed over the last decade. It is now at a stage where the general principles are well understood. Throughout this development the legal issues have always been closely interlinked with the technology available at that time. From the early cases challenging the use of foreign decoder cards7, rights holders have increasingly relied on copyright infringement claims as the legal basis for preventing unauthorised streaming of the broadcast.
The legal basis for protection of IP rights may be relatively clear, but actually applying the principles in practice is difficult. As this issue moves increasingly online, the dynamic environment means that legal solutions often seem slow, cumbersome and expensive in comparison to the speed at which the streaming challenge is evolving.
Legal options available
Traditionally the first hurdle in any litigation is identifying the defendant. This can be very difficult online. Even if the infringer can be found they are often outside the jurisdiction which makes it hard to enforce a decision against them. As a result, rights holders have often taken action8 against the Internet Service Providers (ISPs). Until recently rights holders would target the websites that host illegal content by obtaining court orders requiring ISPs to block access to the site. This was based on section 97A of the Copyright, Designs and Patents Act 1988, which permits courts in the UK to grant an injunction or interdict against an ISP if it has actual knowledge of another person using their service to infringe copyright. This approach was common for many years, but had become increasingly ineffective because of the speed with which an infringer can defeat the order by, for example, moving servers abroad and regularly changing their IP address.
In 2017, the governing body of the Premier League (The Football Association Premier League Ltd - FAPL) sought to address this. It successfully obtained the first “live” injunction against six ISPs9 (discussed previously in LawInSport in an article by Alex Slade, head of legal, sport at BT10). The FAPL took the view that blocking access to streaming servers was likely to be more effective than the blocking the websites. This was the first instance of FAPL moving up the chain by seeking orders in relation to the streaming servers themselves rather than specific hosting websites.
Although the ISPs largely supported the FAPL’s application, the High Court still had to address the question of jurisdiction. The court held that it had jurisdiction to order six major ISPs to block access to specific server IP addresses that were delivering live pirated streams of football matches to consumers. The court summarised the four matters that had to be established for it to have jurisdiction to make the order in paragraph 28 of the decision:
“First, that the Defendants are service providers. Secondly, that users and/or the operators of the Target Servers infringe FAPL's copyrights. Thirdly, that users and/or the operators of the Target Servers use the Defendants' services to do that. Fourthly, that the Defendants have actual knowledge of this.”11
The decision was carefully dovetailed with the technologies available to ISPs to comply with its order and to reduce the risk of blocking servers which did not stream infringing content. Specifically, the order:
only had effect at the times when live match footage was being broadcast;
required the list of targeted servers to be reset each week;
required notice to be sent to the hosting provider in each week confirming that their services were to be subject to blocking; and
was only granted for a short period of time to evaluate its effectiveness (though it has since been renewed for the current season).
The FAPL case was then successfully followed in December by a similar application by UEFA12 in relation to broadcast of the Champions League and Europa League. These cases undoubtedly represent a step in the right direction for rights holders. Moving up the chain and obtaining an order requiring the ISP to block access to the servers delivering the stream will make it more difficult for an infringer to avoid the effects of the court order.
In the most recent application heard on 18 July, the FAPL obtained an order13 extending operation of the blocking order for the duration of the 2018/19 season. The form of order is now established and the court is satisfied that the technology available allows the FAPL to accurately target servers hosting infringing content. Following this precedent, we can expect to see similar applications by rights holders for other major sporting events.
The limitations of legal remedies
The recent decisions were made by a UK court and only applied to UK ISPs. They represent progress but if an event is of global interest then there are additional challenges. The broadcasting rights to events that have global reach are typically auctioned to broadcasters for a specific region. The broadcaster for that region can then decide how to broadcast the event in that region. For example, in most countries around the world this year’s World Cup was legally available by broadcast and online stream at no cost.
Where an event is paid for in one jurisdiction but free in another (as was the case for the World Cup), consumers are increasingly using14 Virtual Private Networks (VPNs) to give the impression that they are located in another jurisdiction and to access the content that is legally available there. VPNs also mask the users’ IP address, which makes them harder to identify. This also creates a reason for consumers to look for illegal streams online. Google Trends shows that during the World Cup the three countries that searched for “reddit world cup stream”15 the most were Singapore, Hong Kong and Canada. None of those countries were actually at the Finals in Russia, but in all three countries a paid subscription was required to watch the games.
The limitations of legal action are derived from three main challenges:
identifying the target of the litigation;
finding an appropriate forum; and
making legal action financially viable because the individuals involved often do not have the ability to meet an award of damages (or even costs).
As a result we have seen a shift in the type of legal remedy that is being used by rights holders. The focus is increasingly on prevention rather than punishing those responsible. Blocking orders are increasingly sophisticated and can provide important support for the technical measures. There is still some value in bringing claims against infringers. A well-publicised case taken against an infringer can help to raise profile and demonstrate to commercial partners that brand protection is taken seriously. The action also has value beyond the individual case because of its wider deterrent effect, however it is unlikely to form the basis of a sustainable rights management program.
Legal responses have on the whole been of very limited success in relation to online streaming. As a result, rights holders have taken steps to address these shortcomings through other means. Court orders are only as effective as the technical solutions that are available to implement them. Whilst the technical solutions used by the FAPL and UEFA in the cases above were kept confidential, the court was satisfied that infringing streams could be identified in real time with a high degree of accuracy and that the ISPs had the ability to block access to those servers in real time. That level of confidence in the technical solutions available underpins the court’s decision to grant an injunction. If the court did not believe that the order could be complied with without impacting other innocent parties, it would have been slow to reach the conclusion that it did.
In addition to supporting the enforcement of court orders, technical solutions often provide a faster, more cost effective way to restrict a consumer’s access to illegal content. The UK IPO’s research demonstrates that a consumer’s decision to view illegal content is driven by the ability to easily access that content at a lower cost. If that process is made even marginally more difficult, then this increases the likelihood that a consumer will return to legal ways to access that content, even if there is a cost implication. Research on the effect of the UK court ordering the blocking of 53 piracy websites in November 2014 found that it resulted in a 90% drop in visits to the blocked sites.16 It also found that these blocks caused a 6% increase in visits to paid legal streaming sites like Netflix and a 10% increase in videos viewed on legal ad-supported streaming sites like BBC and Channel 5.
The response to streaming on social media platforms is largely being driven through the technical solutions developed by the platforms themselves. For example, Facebook has created a system called Rights Manager.17 This allows the user to create a reference library of video content and monitor live video streams. An application programming interface (API) allows the user to integrate their existing and new content and apply rules that automate some of the process by setting parameters about the action that shall be taken. Increasing automation of the process, combined with inventive approaches for watermarking and quickly identifying content means that a greater number infringing feeds, reaching smaller audiences, can be restricted.
The development of the legal and illegal streaming markets has created an environment where it is often difficult for a consumer to distinguish between them. As traditional broadcasters increasingly distribute content through non-traditional channels, infringers have also found ways to give their content the impression of legitimacy. In addition to this, as previously referenced, a quarter of UK Internet users have knowingly consumed illegal content in the last three months. This creates a challenging environment for rights holders and broadcasters are attempting to protect their rights.
The goal for broadcasters is not to eradicate illegal streaming of content entirely. To try would be to waste resources on what is generally accepted as an impossible task. Their real objective is to take enough action to preserve the commercial value in their broadcasting rights. This is achieved by limiting access and targeting the worst offenders. The speed with which illegal streaming continues to develop means that a legal solution will often be of very limited effect. Increasingly broadcasters are recognising that the best way to combat this challenge is by using technical solutions that restrict access to the content. This can adapt more rapidly to new approaches that infringers adopt in the future. Legal action will continue to play an important supporting role. Recent decisions have emphasised the willingness of the English courts to apply the law flexibly to try to address technological developments.
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About the Author
Matt Phillip is an associate with Shepherd & Wedderburn and a member of the firm’s Business of Sport team. He regularly deals with disputes in both Scotland and in England & Wales relating to commercial contracts, infringement of intellectual property, brand protection and professional negligence.