UK Premier League Obtains Partial Win on Appeal of Israel Decision

 

Background

In 2009, Judge Michal Agmon-Gonen ruled that a the anonymous owner of a website streaming UK premier league match broadcasts was not guilty of copyright infringement, since streaming is neither broadcasting nor cable distribution, and thus there is no infringement of the transmission clause, and since no permanent copies are made, but the game is watched live, there is no copyright infringement.

Agmon-Gonen went on to rule that since there was no infringement, there were no grounds to disclose the identity of the site owner.

THE APPEAL

On appeal, the Israel Supreme Court overturned the ruling, based on Tele-Event Decision, accepts that there is copyright in the coverage due to the choice of camera angles and editing, despite taking a mere 5 seconds or less. They concurred that the actual match is not copyright protected, but disagreed with the court of first instance in that they considered the edited coverage as being a creative work.

The defendant, being anonymous, prevented his cross-examination regarding fair use, but there was indication that he benefited from advertising revenue and solicited donations from viewers so his use was arguably commercial. The appellants claimed that they could not cross-examine him on this properly. Furthermore the streamed matches were not transformed in any way, preventing a transformative defense being offered.

The ruling that there was no infringement was overturned, and the NIS 50,000 costs awarded to “ploiny” (John Doe – see Book of Ruth) were cancelled.

However, Deputy President Rivlin backed by Judge Meltzer, ruled that there were insufficient grounds under the current law, to force the Internet Service Providers to disclose Ploiny’s identity. Handel dissented.

COMMENT

The Supreme Court was correct to overturn the copyright decision. A narrow philological reading may be acceptable in extreme circumstances where there is no justification for a wide reading. Here the term broadcasting over cables or wireless covers the internet quite well and there is no philosophical justification to exclude it. People do not have a right to watch international sports events for free. I think if we concerned ourselves with human rights like security, health, freedom of expression and property, and didn’t cheapen the concept of rights to include the right to watch live football without paying for it, the world would be a farer place.

It costs to host football tournaments and sponsorship, ticket sales and broadcasting rights defer the cost, spreading it amongst the supporters.

On a case by case basis, if a government wants to make continuous support conditional of major matches being transmitted for free, that not does remove copyright from the event.

 I am generally against finding ISPs responsible for policing the network, but am not sure that I can see justification in maintaining secrecy of copyright infringer, it is neither freedom of speech or to create, but freedom to benefit from other’s creation. Sport, like any other cultural activity can be commercially marketed to interested parties. There is competition between different sporting events, and if premier league TV is too expensive, there is always the little league. Highlights are generally shown on free television.

It seems that Judge Rivlin felt that without legislation, their hands were tied against revealing the identity of the site-owner. Handel was close convinced, but out-voted. I am generally in favour of judges interpreting within the law and against judicial activism so generally applaud decision to call on the Knesset to rule on topic.

Another point of interest: there seems consensus that watching illegal TV streaming or listening to pirate radio is covered by fair use doctrine.

9183/09 Appeal to Supreme Court by the Football Association Premier League vs. Ploiny and the Legal Counsel of the Government 13 May 2012.

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