The Tel Aviv District Court has decided, in a precedent-setting ruling, that the live netcast of a sports event on the Internet in streaming form is not a breach of copyright of the television broadcast. The court said that even if it had been found that the netcast did breach copyright, it counted as "fair use", as long as it was not for commercial gain.
Therefore, the application from the English Premier League to order ISP Netvision and portal Nana to reveal the identity of an Internet site owner who netcasts Premier League football games was rejected, and it was ruled that the site owner was entitled to continue netcasting. The court recognized fair use as the right of Internet users, and drew a new balance between copyright and users' rights.
The ruling reflects a revolutionary approach that changes the rules of the game in the award of exclusivity in broadcasting rights. According to research published recently, there are some 140,000 pirate websites in the world that offer free sports netcasts (almost all of them association football) of material for which television broadcasters charge payment. They use the streaming method, a digital format that enables the user to hear and see the content of a file without making a permanent copy of it on his or her computer.
The judge, Dr. Michal Agmon-Gonen, said that there was considerable doubt over the court's jurisdiction under international law and the appropriateness of the forum. "It is doubtful whether there are grounds for exercising jurisdiction that a later stage will be unenforceable. Sometimes the infringing sites are transferred to countries in which there is no copyright protection, havens in which foreign legal rulings cannot be enforced, even if they are handed down."
In a closely argued judgment that includes comparison with other legal approaches, the judge discusses the question of when the identity of an Internet player should be disclosed. In cases of slander, Agmon-Gonen says that the surfer's identity should be revealed only when the civil wrong also gives rise to an apparent criminal offence. In her view, in a case of copyright too, a heavy burden lies on the applicant for disclosure.
"Someone who claims breach of copyright must meet two conditions. The first is to present prima facie evidence of a breach, that will lead with a high degree of probability to proof of it. Secondly, the breaches claimed must be especially severe, wrongs committed in aggravated circumstances," the judge said. This is because "unintentionally, millions of people infringe copyright every day; there are no grounds for disclosing their identities in such cases, but only when it is a matter of blatant and severe infringement."
The judge ruled that, generally, non-commercial use will not meet the test of aggravated circumstances, given the important social function of the Internet.
In this case, she held that the Premier League failed to show that the site owner infringed its rights. An expert opinion on its behalf said that this was not a case of copying (because of the use of streaming). The Premier League admitted that it was not a case of making the broadcasts available to the public, because the games could be viewed only when they were transmitted live, and therefore there was no dimension of time, and the judge ruled that this was not a case of "broadcasting", because the law restricted this right to transmission by cable or wireless, which does not include file transfer by streaming using file-sharing software.
After weighing the consideration stipulated by the law, the judge ruled that this was a case of fair use, since the use had important social aims ("watching sports events is socially important, and it is important that it should remain in the realm of mass entertainment, and not just be for those who can afford it"), it related to a work that was not at the core of copyright law, and the scope of use, both in quantity and quality, was not great, as those who view games on the Internet are mostly "those of small means or who are not sufficiently interested in sport to pay", so that in any case they are not potential viewers who would pay to view on television.
Published by Globes [online], Israel business news - www.globes.co.il - on September 2, 2009
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