Is Selling a TV Adaptor Enabling Access to Sports Channels Copyright Infringement?

premier league

This decision considers the liability or otherwise of a supplier of adaptors that enable access to broadcasts of the English Premier League that would otherwise have to purchased from a satellite or cable provider that has an arrangement with the local franchisee. Possible grounds for compensation are copyright infringement and unjust Enrichment.

Charlton ltd has the license for local transmissions of soccer matches from the English Premier league. The defendant is an owner of a company called Electric Power, Satellite Dishes and Communications which sells adaptors for receiving satellite signals for screening on television sets.

copyright

Charlton filed a suit claiming that the defendant had infringed their copyright by selling these adaptors which enables the purchasers to, inter alia, watch sports channels that the plaintiff considers ‘productions’ and dramatic creations, under the Copyright Law 2007 and requested compensation without proof of damage under Section 56 of the Law.

Furthermore, the plaintiff claimed that they are entitled to compensation under the Law of Unjust Enrichment, since the defendant had allegedly benefited from selling the adaptors to different customers and had thereby caused a loss of income to the plaintiff who estimated having thereby lost over 100 clients a year who had decided not to purchase the sports channels that Charlton produces, since the adaptors enabled them to watch these channels without payment.

The plaintiff estimated that the defendant had sold more than 200 adaptors for 1300 Shekels each and had collected a further annual payment of 450 Shekels for ‘sharing the ownership’. Based on these figures, the plaintiff estimated that the damage caused amounted to 300,000 Shekels.

The complaint was filed after the plaintiff discovered advertisements of the defendant on their website that advertised jointly owned adaptors and, following a private investigator sent by the plaintiff, purchased such an adaptor from the defendant which was installed in his apartment.

The plaintiff claimed that during this installation, the defendant had told the investigator that  he could watch the plaintiff’s channels; this, despite no payment being made for watching the channels.

DISCUSSION AND RULING

Copyright Infringement

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The Judge notes that the plaintiff chose to amend the statement of case and to delete allegations of copyright infringement based on an agreement between the English Premier League and themselves. This was since they declined to produce the agreement with a notarized translation for the court.

To support the defendant’s claim, an affidavit from Mr. Ido Sneur, the Manager of Anti-Pirating, was submitted together with an example of a document detailing the production of a transmission by the plaintiff, wherein the process for broadcasting a game from 24 June 2012 was detailed.

After cross-examination of the witness regarding the Affidavit, Judge Levy concluded that the “production document” should not be given any evidentiary weight. The witness agreed that the document was a random document extracted from the work files of the office, that he had not written. The document was not signed and we don’t know who in fact wrote it.

The witness testified that the plaintiff employed 10 content editors and 100 workers, this despite the fact that the editor-in-chief was still working for the plaintiff (see protocol of 24 January 2018). There is thus a prima facie reason to believe that there was no reason why the editor-in-chief could not have been made available for cross-examination in court. This failure acts against the plaintiff.

Since the only piece of evidence that allegedly proves or is intended to prove the actions performed by the plaintiff in producing sports transmissions are copyright protected has been considered as having no evidentiary worth, the plaintiff has failed to prove that there is copyright for this ‘dramatic creation’ as claimed. See also the recently rejected claim in Civil Complaint 51396-02-17 Charlton ltd vs. SKM Beer House ltd, 22 October 2018.

In parallel to the present proceeding, Charlton also sued Shmuel Sarno in Civil Complaint 5190-01-15 Charlton vs. Shmuel Sarno, 2 February 2017 against a defendant who sold adaptors for watching sports channels including those that the plaintiff claimed to have produced, and similar claims were raised in that case.

In the Sarno case, the claims that sports broadcasts are copyright protected were rejected, since the court found that Charlton could not explain what editing and producing had been done for each transmission. Mr. Ido Sneur also testified in the Sarno case, despite him not being involved in editing and production. In that case, a “production document” was also submitted which once again failed to indicate the nature of the activities performed by the plaintiff, and failed to establish that the productions were original creations as claimed in the Statement of Case.

The Sarno case was Appealed in Appeal 36356-03-17 Charlton vs. Shmuel Sarno. The District Court rejected the Appeal but expressed dissatisfaction with the possibility that one can purchase an adaptor and watch such channels without making even a symbolic payment, which adversely affects both paying customers and the service providers. The court also expressed dissatisfaction from the resulting unjust enrichment since the service providers had paid for the right to distribute the sports events.

The District Court ruled that the burden was on the plaintiff to prove that there is copyright on each transmission since Charlton had failed to prove that they had the sole legal right to trade in transmissions of the sporting events in Israel.

It is noted that the District Court ruled that production of a sporting broadcast is an original creation under Section 4(a)1 of the Law and referenced Appeal 9183/09 The Football Association Premier League Limited vs. Ploiny (John Doe) (13 May 2012). From here the District Court derived copyright protection of the Plaintiff in the transmissions. The first way used to prove ownership was the assumption of ownership by the creators under Section 64(1) of the Law with regards to the totality of the sports transmissions that the plaintiff produced and distributed, by virtue of ownership of the channels. The second way was to prove copyright in all creative works produced by the plaintiff by way of evidence testifying to the production activity.

In re Sarno, the District Court ruled that the Plaintiff had not shown sufficient evidence to prove ownership of the channels or of the symbols shown on the productions (i.e. the logo and name of the sports channel). In the decisions that the Plaintiff had cited, there was also a failure to establish that the plaintiff was indeed the rights owner.

From the above, there is no previous determination on which to base an assumption that the plaintiff has created or produced the programs broadcast on these channels. The District Court also accepted the conclusions of the Court of First Instance that the plaintiff had failed to establish that they owned the copyright in the individual broadcasts, since the plaintiff had failed to prove their claim that they were the sole licensee in Israel with the right to trade in and distribute the various and many sporting events, and thus infringement of the rights of the plaintiff was not proven. Finally, the District Court related to the single production document submitted in evidence to the Court of First Instance and upheld the finding that it should be given any evidentiary weight since it was not signed by its author and the witness was not party to its creation and was not familiar with the production actions that were described therein.

The District Court summarized the ruling that since there was no proven copyright infringement, there was no reason to relate to the other claims raised by the plaintiff, including that of Unjust Enrichment.

In the current proceeding, the Plaintiff chose to claim that there was copyright in all the transmissions that they produced, rather than in specific programs. It is noted that the claims against the defendant do not relate to a specific program at a specific time, but alleges that the mere sale of the adaptor that is jointly owned with the defendant’s customers is itself copyright infringement. The witness for the prosecution did produce a production document relating to a random transmission, but this was not shown in evidence to prove that there was copyright infringement of this transmission, but rather as an example of the different activities that the plaintiff performs when producing a sports transmission. Consequently, it is necessary to determine whether the plaintiff has proven ownership of the relevant sports channels and can thus benefit from the assumption of being the creator of the creative work under Section 64(1) of the Law.

It is noted that the plaintiff chose to abandon the allegation made in the original Statement of Case that “they were the sole franchisee having the right to trade in and broadcast many sports channels” because upholding this claim required them to produce documentation showing the relationship between themselves and the foreign rights holders. So in the corrected Statement of Case this claim was removed.

Reiterating and stressing, with respect to the statement of claims of the plaintiff, as submitted on 15 February 2016, the Plaintiff claims that the Complaint is not filed on the basis of any agreement between the plaintiff and the rights holders of the programs, but is based on the claim that the defendant hacked into the channels of Yes (Israel’s satellite TV operator), and allowed many customers to watch Sport 1 HD.  

There was no evidence appended to the Statement of Mr. Ido Sneur from which one could deduce that the plaintiff was the owner of the sports channels that they claimed to produce for the sports transmissions. All the plaintiff’s claims regarding their rights were general claims. The plaintiff has not met the standard of proof required.

In this regard, it is noted that the plaintiff is a ‘return player’ in the courts, and has managed many complaints of copyright infringement, as is evidenced by the many rulings referenced in the summations of the complaint itself. They are aware or should be aware of the burden of proof they bear, to show that they own copyright as claimed.

Despite this, they did not reveal the agreements under which they acquired the broadcasting rights they claim, or licenses to the plaintiff from the broadcasters. They also failed to summon witnesses that could testify on their behalf regarding the process of producing the transmissions as a specific creation, thereby acquiring copyright therein that was infringed.

The Appeal of re Sarno was given on 23 November 2017 in parallel to this proceeding, but before evidence was given. (The first evidence hearing was on 24 January 2018.)

However, the plaintiff did not request to correct their Statement of Case or to submit evidence in light of the appeal ruling in re Sarno, and the District Court stating the level of proof incumbent on the plaintiff and the two ways to prove copyright (ownership of the channels as an assumption of creating, or proof of copyright in each separate creative work).

The plaintiff appended several decisions of the Authority for Cable and Satellite Transmissions to their summations. Most gave authority to DMS Satellite Services (1998) ltd (known commercially as YES) to broadcast the plaintiff’s channels, from which one can apparently learn that the plaintiff does indeed own the relevant channels. The submission of these decisions with the summation was apparently to reach the burden of proof laid out in re Sarno. That means to say, that one has to show ownership of the channels as a prerequisite for proving [ownership of] copyright in transmissions produced for the channels. However, in the interim ruling of 13 May 2018 that Judge Cochavi gave in the current case, she did not authorize appending additional evidence at the summation stage. Consequently, these decisions are to be struck from the file.

In this regard, Judge Cochavi refers to the Civil Complaint 71459-04-11 Charlton ld vs. Shai Ben Torah 22 June 2014 ruling, from which it transpires that back then the plaintiff tried to base its case on the decisions of the Authority for Cable and Satellite Transmissions, but failed in this regard, since the agreement was for a set time and didn’t cover the period of the alleged infringements.

From the above it may be deduced that the plaintiff chose not to submit these decisions in the present case as well, despite having them in their possession at the time that the complaint was submitted.

A further problem at the plaintiff’s door is that in Appeal 5097/11 Telran Communications (1986) ltd. vs. Charlton ltd from 2 September 2013 it was ruled that selling technological bypasses was not considered copyright infringement in the current legal regime following the legislation of the current copyright law. In these circumstances, the mere sale of jointly owned adaptors by the defendant, even if it enables watching channels that [otherwise] could be viewed only by payment to the plaintiff, is not copyright infringement under Israel Law.

To summarize so far, the plaintiff has not proven that it owns copyright in the sports transmissions, and also has not proven that the defendant has infringed copyright. Consequently, allegations of copyright infringement are rejected.

Judge Cochavi has related to the copyright issues at length because of their importance, and has related to several decisions involving the plaintiff since the plaintiff had abandoned these claims, since, as they put it “The courts are locked against claims for compensation on the grounds of copyright infringement”, and this is the reason for the current case requesting compensation on the grounds of Unjust Enrichment.

Unjust Enrichment

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The plaintiff bases their claim for compensation on Unjust Enrichment in the Decision given in re Telran, where it was ruled that they had failed to establish copyright infringement, and the Supreme Court had sent the case back to the District Court as the Court of First Instance, to consider the question of whether there was grounds for a ruling on the basis of Unjust Enrichment.

Although the proceeding was referred back to the District Court, the parties subsequently signed a negotiated settlement that was endorsed by the court on 2 February 2014, under which it was ruled that Telran would compensate the plaintiff. Thus in practice, there was no ruling regarding whether Unjust Enrichment was grounds for compensation in such cases.

The court ruling in re Telran was based on the case-law established in Appeal 5768/94 A.Sh.I.R. Import Export and Distribution vs. The Forum for Accessories and Consumer Necessities ltd. p.d. 52(4) (1998) which deals with the application of the Law of Unjust Enrichment alongside Intellectual Property rights. In the scope of that decision, the rules for applying the Law of Unjust Enrichment were established.

The interface between the Law of Unjust Enrichment and the various branches of Intellectual Property rights, and the question of the right to sue under the Law of Unjust Enrichment in cases where there is no proven defense on IP grounds is discussed in a number of cases that considered the borders of applicability of the A.Sh.I.R. ruling. Appeal 10717/05 Florist de Kwakal b.w. vs. Baruch Hajaj established that there is an apparent difficulty in granting a remedy under the Law of Unjust Enrichment to protect a plant strain that was not registered due to the specific instruction in Section 62 of the Plant Breeders Rights 1973, but the Court chose to refrain from ruling on whether A.Sh.I.R. could have been used in such cases.

In 76/12 Elad Menachem Suissa vs. Tommy Hilfiger Licensing LLC (16 November 2014) which related to forbidden uses of trademarks by vendors of parallel imported goods, Judge Barak Erez gave her views on this matter:

It is thus important to stress that the Laws of Unjust Enrichment were not intended to create a way of bypassing Intellectual Property laws, and to widen the monopolistic regime beyond that given by the IP Laws with their internal checks and balances (for the interface between Intellectual Property Laws and the Law of unjust Enrichment see Appeal 5768/94 A.Sh.I.R. Import Export and Distribution vs. The Forum for Accessories and Consumer Necessities ltd. p.d. 52(4) 289 (1998); Niva Elkin-Koren “On the Public and on Public Property; From Intellectual Property to Unjust Enrichment, Legal Analysis 25 9 (2001) and Ofer Grosskopf in “The Vulture and the Princesses, on the relationship between Unjust Enrichment and Copyright, Copyright, Readings in Copyright Law”, 201 edited by Michael Birnhak and Guy Pesach, 2009.

In Appeal 1248/15 Fisher Price Inc vs. Dweran Import Export ltd (31 August 2017) the Supreme Court considered the case of where a swing seat was copied and whether so doing was copyright infringement, but also in this ruling the Deputy President Judge Rubinstein left open the question of whether A.Sh.I.R. could be applied in this case that touches on Intellectual Property. Once we establish that there is no additional element of bad faith as required in A.Sh.I.R., there was no grounds to grant damages under the Law of Unjust Enrichment.

It should be noted that within the framework of this ruling, the court accepted the position of the Attorney General who considered that the A.Sh.I.R. ruling left a lot unclear and the Law of Unjust Enrichment cannot establish a right or defense beyond that known, either explicitly or implicitly from the framework of rights that make up the Intellectual Property Laws. Since in cases like this, there is nothing that is “unlawful” as required by the Law of Unlawful Enrichment 1979, and since there is a negative arrangement that prevents applying this law (- Section 6a of the Law). Applying the Law of Unlawful Enrichment together with Intellectual Property Laws and in addition to them, will, according to the Attorney General, undermine the purpose and basis of the Intellectual Property Laws.

In the framework of the District Court rulings, it appears that alongside cases where claims of Unlawful Enrichment was rejected, there are cases where it was accepted and damages have even been granted by way of estimate in certain cases. See Appeal 14982-09-16 A.R.S. Group ltd vs. Siman Tov Katan 7 October 2018 where Unlawful Enrichment was rejected for cases of Intellectual Property rights and passing off. In Appeal to the Central Court 22098-06-14 Michal Shulman vs. Immediate Finances ltd, the rejection of the claim of copyright led to the rejection of the claim of Unlawful Enrichment. In Appeal to the Central Court Zarmon DDB ltd vs. Adler Homsky and Warhawski 15 November 2016, the claim of Unlawful Enrichment was accepted despite the Intellectual Property claims being rejected (the appeal to the Supreme Court was canceled with the agreement of both parties, in Appeal to the Central Court 11740-03-13 Fundacio Gala Salvador Dali vs. V. S. Marketing (Israel 2005) ltd., a claim of Unlawful Enrichment was upheld, since it was ruled that the right to publicize is a personal right that Intellectual Property law does not deal with and so there is no negative arrangement. In Appeal 3025/09 V&S Vin and Spirit Aktiebolag (publ) vs. Nir Barzilai, under the Law of Unlawful Enrichment compensation was estimated against someone who had faked a product.

From reviewing the case-law given by the various courts, it transpires that even though there are opinions that call for narrowing the application of A.Sh.I.R. or to reconsider it, until the Law changes, there is room to consider unlawful enrichment as a complementary right to the intellectual property laws where appropriate and where there is the additional element that justifies applying the right.

In further consideration of the difficulty in applying the A.Sh.I.R. law as complementary to the Intellectual Property Laws, see Prof. Ofer Grosskopf (now on the Supreme Court) in his paper “The Vulture and the Princesses, on the relationship between Unjust Enrichment and Copyright, Copyright, Readings in Copyright Law, 201 (edited by Michael Birnhak and Guy Pesach, 2009).

And from the general to the specific: the question is whether it is fitting to award damages on grounds of Unlawful Enrichment in this instance, having determined that the plaintiff had not met the requirements for establishing a case on grounds of Copyright Infringement due to not having produced adequate evidence that they were the rights owner of the channels, or that they had copyright in specific (sports) programs, due to having produced the programs.

In re A.Sh.I.R., it was ruled that there are four conditions for obtaining compensation under the Law of Unjust Enrichment:

  1. Receiving a good, service or benefit – i.e. enrichment
  2. Enrichment results from receiving the above
  3. The benefit occurs to someone not having rights under the law
  4. To the extent that the benefit of the one enriched is not a tort and doesn’t trespass an intellectual property right, an obligation of faithfulness or trade-secret, there is a need for some additional grounds to establish the obligation to compensate

The ‘additional ground’ were disputed by the judges of the A.Sh.I.R. case. However, one can say that there is nevertheless a requirement for some additional grounds, where the infringement is of an intellectual property right. So to show that the benefit was not one under the law there is a need for the claimant to show that the defendant had become enriched by some illicit behavior such as inequitable behavior or unfair competition.

The ‘additional ground’ is some sort of addition that the claimant has to point to, such that despite not infringing intellectual property rights, it justifies the redistribution of the wealth accrued from defendant to plaintiff.

The current claim in the present case is that of restitution under Section 1 of the Law of Unjust Enrichment 1979 which teaches that the one who benefits without a property right in a good, service or other benefit that belongs to someone else has to make restitution of the benefit, and this requires the four conditions listed above.

The ‘additional ground’ is explained in the case-law as behavior that is incompatible with fair trade. The behavior in each instance is considered on a case specific basis. In re A.Sh.I.R., then President Aharon Barak indicated various considerations that indicate unfair competition or unfair trading and to the extent that a product is important, novel, original or unique, it is more likely that its copying or mimicking will be seen as being Unjust Enrichment.  In making this assessment, consideration of the effort extended by the original supplier and of the copier, the state of mind of the copying entity, the existence of alternatives for manufacturing products with competing functions but different appearances, and the conditions that create a disincentive to manufacturers to create competing products and to invest in new technologies that promote competition. It was also ruled that it is important to prevent the plaintiff having protection under the Law of Unjust Enrichment in cases where he could and should have registered an Intellectual Property right. (see A.Sh.I.R. pages 474 -479).

In the District Court ruling on appeal of re Sarno that was previously mentioned, it was ruled that since the plaintiff did not prove that they had Intellectual Property rights in productions that were broadcast on these channels, the derivative claims were rejected, including claims of Unjust Enrichment. It appears that a similar determination may be made in the present case which has a similar factual basis and because the plaintiff has again failed to establish copyright in the sports programs by failing to provide evidence that support this alleged right. However, Judge Cochavi considers that there is still room to consider whether the A.Sh.I.R. case-law should be applied to this case.

In re Telran, the Supreme Court referred the case back to the lower court to consider whether there was Unjust Enrichment in cases where there was no copyright infringement since technological bypasses are not considered copyright infringing under the current law. The plaintiff wishes that the court makes a similar determination in the present instance.

Firstly, from consideration of the ruling in re Telran, one can see that it does not include a positive determination that one can sue for unjust enrichment as an alternative to copyright. Judge Zilbertal cited Professor Daniel Friedman’s book Unjust Enrichment (1998) which discusses a similar case, where a device was sold that enabled viewing charged for transmissions without paying, and whether this was considered unjust enrichment. Professor Friedman concurs that this is a complicated issue, but notes that if the device does not have a legitimate use apart from cracking the transmission codes, then it is tends to lead to a finding of unjust enrichment. Judge Rubinstein concurred, and added that where the intellectual property legislation is available to the parties, but the facts do not provide a basis for ruling infringement, one should not allow resorting to the Law of Unjust Enrichment, and referred to Appeal 9191/03 V&S vs. Absolut Shoes ltd, p.d. 58(6) to differentiate the case from one where the IP route was blocked by a legal impediment and one could sue under the Law of Unjust Enrichment.

From analysis of the Judges’ positions, Judge Cochavi found that in the present instance the plaintiff cannot rely on re Telran as the basis of clear legal grounds under the tort of Unjust Enrichment, and so, according to Professor Friedman who was largely relied upon by Judge Zilbertal, one should differentiate between a device without a legal use other than watching transmissions that are otherwise charged for and the present instance, since the plaintiff admitted under cross-examination that there are channels that are available for free, and there are adaptors that are legally imported, and that it requires an active reprogramming to allow viewing of encrypted or blocked transmissions.

The plaintiff’s witness also testified that the defendant offered for sale adaptors that allowed viewing of different channels, including sports channels of the plaintiff. Since this is an adaptor that has a legitimate usage, the question of whether there is unjust enrichment is not trivial, even when taking Professor Friedman’s approach. In re Telran, the court considered a computer card that decoded signals from foreign networks, which was apparently its main purpose. Thus that case was closer to Professor Fridman’s analysis than the present instance.

Also Judge Rubinstein’s ruling makes the plaintiff’s position difficult since he holds that the Law of Unjust Enrichment should not be applied in cases where the plaintiff should be proving an intellectual property infringement; copyright infringement of the plaintiff’s creations in this instance (whether by showing ownership of the channels or of the content), and this is thus a case where the proven facts do not support the claimed allegations.

The Plaintiff did not relate to these difficulties in his statement of case, not in witness testimony and not even in the summation, since the plaintiff considers that following the Telran ruling, they can simply sue on grounds of unjust enrichment. However, Judge Cochavi disagrees.

The plaintiff claims that the defendant had hacked their encryption when he had installed the adaptor in the apartment of the private investigator. The plaintiff supported this allegation by explaining the workings of the adaptor using an expert witness. But following this being struck from the record in an interim ruling of 24 January 2018, they have failed to prove that the adaptor works by hacking an encryption.

Additional, from examination of the conversation between defendant and private investigator that was submitted as an appendix to the testimony of the private investigator, it transpired that the defendant had not mentioned the ability to view the plaintiff’s channels, but merely to view ‘sports channels’ and the ‘English League’. The defendant explained to the private investigator that these could be accessed through European channels.

Under cross-examination, the private investigator’s testimony regarding a video of the installation of the adaptor by the defendant was found to be lacking.

The private investigator claimed not to remember that the defendant had offered to allow viewing of the Italian sports channel which he claimed was similar to the YES sports channel, but after hearing the recording, he agreed that that was what had been discussed. The private investigator acknowledged that he’d taken the recording himself, and noted the presence of an additional lady who had knocked the camera. The private investigator admitted that after the defendant had left the apartment, someone else (not the defendant) used the remote control and tuned the television to receive the plaintiff’s channels some eight minutes after the defendant had left the premises. However, it also transpired that the apartment was connected to the YES Service independently of the defendant’s actions, so one cannot discount the possibility that access to the plaintiff’s channel was via the legally purchased YES package and not via the adaptor at all.

The conclusion reached is that the plaintiff has failed to provide sufficient evidence to establish that the defendant had hacked into the plaintiff’s encrypted channel at the apartment of the private investigator. From the cross-examination of the defendant, one can conclude that he was aware that using the adaptors he was selling, it was possible to watch encrypted channels, such as those provided by YES. However, Judge Cochavi did not find that the defendant had admitted that he had hacked the encoding of the encoded channels and allowed them to be viewed.

In their summations, the plaintiff claimed that the defendant had sold their property, the fruit of the plaintiff’s investment, contrary to the law and without expenses or outlay, and had thereby been unjustly enriched at the expense of the plaintiff.

Judge Cochavi does not consider that the plaintiff had provided the evidence required under the A.Sh.I.R. ruling to substantiate the claim of copyright infringement, and had not proved their ownership of the sports channels. Furthermore, the plaintiff did not provide any evidence and did not produce any witnesses with a relevant background to substantiate their claim that they had invested or toiled to produce the transmissions. The plaintiff referred to various court rulings that were alleged to show that they owned the sports channels or had copyright ownership in some programs, but this was insufficient to prove the allegations in those cases or in the present instance.

In this regard Judge Cochavi noted that the plaintiff had noted that the monthly charge for consumers to have access to these sports channels was 67 Shekels a month (about $18 US), but had failed to show the payments that they received from the cable and satellite companies to show their losses, and failed to produce any documentation to substantiate their losses.

In the affidavit of Ido Sneur, the plaintiff alleged that the defendant had sold more than 200 adaptors that were jointly owned with their customers, but later stated that they had lost at least 100 customers due to the defendant’s actions selling cheaper access to the channels. Judge Cochavi believes that the difference between the two sets of data show that the plaintiff admits that not all clients who purchased an adaptor were interested in watching the plaintiff’s channels without paying for so doing, or by paying a reduced price, since the plaintiff themselves had apparently concluded that only about half the customers of the adaptors were interested in watching the sports channels of the plaintiff. We are only dealing with an estimate, but the plaintiff did not even substantiate these numbers to support a claim of Unjust Enrichment.

Having found that the plaintiff has failed to prove that the defendant had hacked their channels with the adaptor to watch channels that require payment to watch, there is no ‘additional element’, i.e. evidence of wrongful behavior or bad faith as required to support a claim of Unjust Enrichment.

From all the issues and considerations above, Judge Cochavi concludes that in the present instance, the plaintiff has failed to show Unjust Enrichment to the standard required by the A.Sh.I.R. ruling.

CONCLUSION

The allegations of both copyright infringement and Unjust Enrichment are rejected and the case is dismissed.

Truth be told, one cannot ignore the fact that the defendant has at least contributed indirectly to the possibility that his customers can watch channels for free or for a minimal price that generally require payment to the channel owners or the copyright holders. This is similar to the Sarno case where despite the Court’s dissatisfaction, they noted that the law does not provide grounds for compensation since the legislators did not provide protection. Nevertheless, the court has refrained to rule costs to the defendant and both sides will bear their own expenses. The plaintiff is entitled to have his bond returned.

20293-03-15 Charlton vs. Shalom Horish, Ruling by Judge Cochavi of 17 December 2018.  

COMMENT

Clearly the Plaintiff made a lousy case, and failed to show that they owned copyright of their sports channels. It is not clear whether they have a monopoly on transmissions of the sports products within Israel, or merely have the right to produce and sell sports channels to the satellite and cable providers. In other words, possibly access to French, UK or Arabic sports channels from Israel is legal or, if illegal, infringes the rights of the French, UK or Arabic franchises and not those of Charlton.

The Supreme Court has established copyright in sporting transmissions in the Premier League ruling. This was not trivial since sports matches are not scripted and choreographed, or at least are not supposed to be.

The issue of hardware that enables copyright infringement was discussed in the UK case Amstrad that dealt with twin cassette desks enabling copying of copyright material. That case went all the way to the House of Lords, but was thrown out since the machine could be used for legal copying.

In patent law, contributory infringement was recognized in the Rav Bareakh crook-lock decision, and in Srorry vs. Regba, the importer of a product used for a patent infringing installation was found guilty of indirect infringement.

The lack of evidence regarding numbers of infringing customers is also something that can be dealt with by statutory damages without proof, which exists in both Copyright Law and in the Law of Unjust Enrichment.

It seems that were the courts interested in providing a sanction, they could have done so. That said, I can imagine customers of adaptors being interested in watching foreign broadcasts, like BBC and Sky news and BBC Prime, etc. and having no interest in sporting features. Despite being born in the UK and having lived the first half of my life within sight of Wembley Stadium, I am not interested in sport, and the highlight shown on the main news is ample for me. My youngest is a basketball fan but watches this on Israel public channels.

So, I was less than impressed with Charlton’s legal team, but not madly impressed with this long and rambling ruling that seems to have avoided some of the more interesting questions.



Categories: bad faith, Copyright, inequitable behaviour, infringement, Intellectual Property, Israel Copyright, Israel Court Ruling, Israel IP, Uncategorized, unjust enrichment, זכות יוצרים, עשיית אושר

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