Israeli Judge Permits Unlicensed Sports Event Streaming—FAPL v. Ploni (Guest Blog Post)
Case No. 1636/08, Motion 11646/08, The Football Association Premier League Ltd. V. Ploni and others [in Hebrew], Tel Aviv District court, Judge Agmon-Gonen, Sept. 2, 2009.
[Eric’s introductory note: I have received several emailed references to the recent Israeli copyright decision involving the Internet streaming of a live sporting event in Israel. Normally, I don’t blog foreign decisions because (1) it’s hard enough to keep up with US legal developments, and (2) it’s even harder to understand the subtleties of a foreign judgment without intimately knowing the entire legal context. Fortunately, Yoram Lichtenstein, an Israeli IP lawyer who represented the defendant in this case, approached me offering to write a guest blog post contextualizing the decision from an Israeli context. Obviously, Yoram has an interest in this case, but that makes his perspectives especially helpful in deciphering the interesting and complex opinion.]
The Tel Aviv (Israel) District court’s recently issued a decision regarding copyright protection for streaming live football (soccer to American readers) in Football Association Premier League (FAPL) v. Ploni. The decision tackles several major issues, including international jurisdiction over the Internet, Israeli John Doe procedure, what constitutes copyright infringement (whether streaming live sports over the Internet breaches copyright at all), and more. But the main issues that caused the greatest stir here in Israel were (1) how the court defined and addressed the public’s right to access copyrighted material (yes!), and (2) the unusual analysis of fair use under Israeli law.
New User “Rights”
The court addressed the public’s rights under the law (such as fair use) as a “right” deriving from the Human Rights Declaration of 1948 and other doctrines. As a result, the users’ legal rights are accompanied by a duty of another (the copyright holders) to allow their activities. Accordingly, the court’s reasoning could potentially create new causes of action when a copyright owner deprives users of protected “rights.” If, for example, a software developer uses Digital Rights Management (DRM) to limit a person’s right to back up her legally purchased copy of the software or use it on another personal computer, the user might be able to sue the developer for inappropriately restricting the user’s rights in certain instances.
Fair Use
Copyright gives the creator a limited monopoly on his or her work, but the public has certain rights to use the work while it is still under copyright. Unfortunately, this balance is rarely struck in Israeli or international rulings. Fortunately, Judge Agmon-Gonen, a fearless and eloquent judge, confronts those two issues directly in her fair use analysis [note: in 2007, Israel’s copyright statute adopted a fair use defense with the same four factors as the US fair use defense].
The purpose and nature of the use: The judge clearly stated that a use for commercial purposes may still be fair if it has significant social value and benefit. She further concluded that the John Doe’s activity here–making important sport events accessible to the public for little or no payment–is socially important and carry significant social gains. The judge referred to Kelly v. Arriba Soft and the Perfect 10 v. Amazon and Google cases as examples where social importance overrode the commercial purpose of the alleged infringement.
The judge then delved into a very interesting analysis of the sociological importance of soccer and the importance of making it accessible to the public. Making soccer available only to the wealthy is unacceptable, stated the judge. The court considered the possibility that the change in culture and the development of the Internet and Internet culture may be a way to return sports to the masses.
Nature of the Work. The judge concluded that live coverage of soccer matches is protected under copyright law but is not part of copyright’s “core.” The main content of sporting events is factual; the artistic value of such work is minimal and not the reason for its popularity.
Amount of the Work Taken. The judge said that the evidence did not permit an informed decision regarding the quality of the infringement.
Effect on the Market. The court stated that we cannot categorically say that any use will damage the value of the work, and in this case the court does not consider the accumulated consequences of other similar breaches.
Conclusion
The judge accepted the Doe’s position that some soccer events, and sporting events generally, have a significant cultural and social value. As such, certain uses of protected works are still fair use despite their commercial considerations and potential damage to the rights holder.
The basis of the judge’s decision rests on the public’s rights and on the obligations of copyright holders to modify their business model in a manner that will not breach the public’s rights. For example (and I am no economic consultant), if the FAPL embraces the Olympic model of sponsorships and advertisements, “pirates” such as the John Doe in this case will become the FAPL’s best friends as they will increase the value of the works and the games and not damage them. This appears to be a win-win solution for both the copyright holders and the public.
I dare to say, this judgment is a wakeup call to copyright holders to open their eyes and recognize that the pendulum is swinging back in favor of the public. The Internet is here to stay, and the resulting economic shift will not go away. If appellate judges embrace this reality the way the trial court did, I believe that the main tenets of the judgment will survive the appeal.
That does not mean we should pirate copyright holders freely, but it does mean that the copyright holders need to find better models that will allow them their profit (which I’m all for) without infringing the public’s rights. Further, we, the public, need to better protect our rights as users.
On this note, a happy Jewish New Year to us all.