March 19, 2019

This article was first published in Entertainment Law Review, Issue 2, 2019.

Matchroom Boxing (Matchroom), the boxing event promotions company led by Barry and Eddie Hearn, has obtained a blocking order under s.97A of the Copyright, Designs and Patents Act 1988 against the UK’s six main Internet service providers (ISPs)—namely BT, EE, Plusnet, TalkTalk, Virgin Media and Sky (Matchroom’s exclusive UK licensee)—requiring them to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of professional boxing matches staged by Matchroom[1]. The Matchroom order mirrors the earlier ‘live’ blocking orders granted by Arnold J in favour of the Football Association Premier League (FAPL) and UEFA, with two notable differences: (i) given the irregular timing of events, the infringing servers are identified using an alternative form of monitoring; and (ii) due to the more fluid nature of event scheduling, instead of covering a season of fixtures, the order is for two years with events to be notified to the ISPs at least four weeks in advance.

Background

In March 2017, in FAPL v BT [2017] EWHC 480 (Ch), Arnold J made an order on the application of FAPL requiring the ISPs to take measures to block, or at least impede, access by their customers to streaming servers delivering infringing live streams of Premier League matches to UK consumers. Since then, Arnold J has made two further orders in favour of FAPL and two similar orders in favour of UEFA in respect of streaming servers delivering infringing live streams of UEFA matches to UK consumers. The most recent FAPL and UEFA orders cover the 2018/19 season.

Matchroom sought to block streaming servers which deliver infringing live streams (Target Servers) of the professional boxing matches it stages (Events). In his judgment, Arnold J set out the background to Matchroom’s application.

Matchroom organises approximately 22–23 Events per year. A number of the Events feature Anthony Joshua, who defeated Alexander Povetkin in a bout at Wembley Stadium on 22 September 2018 to retain four of the five world heavyweight titles. Events typically run from 17:00 to 23:00 on the day in question and include a number of other fights on the undercard before the headline fight.

In the UK, the Events are broadcast by Sky pursuant to exclusive agreements with Matchroom which run until 2021. In the case of Events featuring Anthony Joshua, Matchroom owns the copyrights in the broadcasts and films; in the case of other Events, Sky owns the copyrights, but it had assigned the right to bring these proceedings to Matchroom. Sky broadcasts the Events on either a  standard  basis  (Standard  Events)  or  a pay-per-view basis (PPV Events).

PPV Events, such as the Anthony Joshua vs. Alexander Povetkin and Tony Bellew vs. Oleksandr Usyk bouts on 22 September 2018 and 10 November 2018 respectively, are of most interest to boxing fans. PPV Events, which attract up to 1.3 million viewers, are available on the Sky Sports Box Office channel and consumers must pay in the region of £20 to watch each PPV Event on top of their normal subscription. Sky pays Matchroom a substantial fee for the broadcasting rights and, in addition, Sky shares the revenue from PPV Events with Matchroom.

Given the success of the live blocking orders granted in favour of FAPL and UEFA, Matchroom sought a similar order with a view to combatting the growing problem of live Event footage being streamed in infringement of Matchroom’s and Sky’s rights, to the commercial detriment of those rights.

Unsurprisingly, on account of its strong vested interest, Sky supported Matchroom’s application. The other five ISPs either consented to, or did not oppose, the application.

Decision

Granting the order, Arnold J stated that the background to Matchroom’s application was very similar to that described in FAPL v BT. There was evidence of “very large numbers” of infringing live streams having been watched for Anthony Joshua’s most recent fights, therefore depriving both Matchroom and Sky of substantial revenues from PPV Events.

However, the order sought by Matchroom differed from the earlier live blocking orders in two material respects:

(1)        Identification of Target Servers

Given the irregular timing of the Events, and in particular PPV Events, it was not possible for the Target Servers to be identified in the same way. Although the criteria used were similar, they were to be applied by a particular form of monitoring carried out in a seven-day period prior to each Event. The details of this monitoring are confidential, in order to prevent circumvention. Arnold J recognised that this created a theoretically greater risk of over-blocking, however, he accepted Matchroom’s evidence that, in practice, there should be no real difference.

(2)        Notification of Events

Whereas the FAPL and UEFA orders covered a season (or part of a season) and listed all of the matches within the relevant period, this was not possible under the Matchroom order because the order is set to last two years and Events are not fixed sufficiently far in advance. Accordingly, the Matchroom order provides for Events to be notified to the ISPs at least four weeks in advance.

Having considered the evidence and the terms of the order, Arnold J was satisfied that the court had jurisdiction to make the order sought, and that it was appropriate to exercise his discretion to do so, for substantially the same reasons as in the FAPL and UEFA judgments.

In summary, the order was proportionate. It did not impair the rights of the ISPs to carry on business. To the limited extent that it interfered with the rights of internet users to impart or receive information, the interference was justified by a legitimate aim, namely preventing infringement of Matchroom’s and Sky’s rights on a large scale, and it was proportionate to that aim.

In that regard, Arnold J was satisfied that it would be effective and dissuasive, no equally effective but less onerous measures were available to Matchroom, it avoided creating barriers to legitimate trade, it was not unduly complicated or costly and it contained safeguards against misuse.

Comment

Unsurprisingly, it was agreed that there should be no order as to costs. Sky has a vested interest in ensuring that revenue from broadcasts of Matchroom Events is not undermined by the availability of pirate services, whilst the other ISPs, such as BT and its subsidiaries, have an indirect (if not vested) interest in ensuring that broadcasting and digital rights in respect of live sports events are not diluted and devalued.

Matchroom’s business model, akin to all major sports rightsholders, is predicated on the ability to market and sell its broadcasting rights and to protect its intellectual property. Sports rightsholders and licensed broadcasters/media service providers will no doubt hope that this latest order further educates UK consumers as to the illegality of streaming through illegally modified IPTV boxes, as well as to the significant risk of exposing themselves to harm, such as malware, which could infiltrate devices (and any connected devices) used to watch infringing live streams.

This judgment further illustrates the efficacy and flexibility of s.97A blocking orders in securing relatively quick, and meaningful, relief from the High Court in the fight against piracy of sports broadcasting rights.

[1] Matchroom Boxing Ltd v British Telecommunications Plc [2018] EWHC 2443 (Ch) (20 September 2018) (available here: https://www.bailii.org/ew/cases/EWHC/Ch/2018/2443.html)