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Online Sports Broadcasting: 'Fair Use' and Revealing User Info

The Football Association Premier League LTD. vs. John Doe

17 June, 2012,

Yonatan Drori

Online Sports Broadcasting: 'Fair Use' and Revealing User Info

Background

The Israeli Supreme Court has ruled, in a recent ruling, that the owner of an Israeli website which offers the viewing of sporting events through 'streaming' technology has infringed copyright laws. The issue was not at all simple. Many questions regarding the classic definitions of copyright law took on new meaning in a case that called for Israeli courts and lawmakers to reexamine statues and norms existing in modern day Israel.

Legal Issues

The court ruled that although sporting events do not fall under classic copyright protection, the production of sporting events (i.e. the filming and editing techniques as well as commentaries and commercials) on television can be protected by these laws. In Israeli law Broadcasting rights combined with the 'Making Available' right constitute the Public Performance right, defined by the new copyright law as 'making a change to a production in a manner that will allow the public access to the production at a time and place of ones choosing'.

The court ruled further that the words 'a time and place of one's choosing' in the law apply even in a case of a live production, even though the broadcaster does not have the option to choose the timing of the broadcast. On a side note the court also added that the owner may even be aiding in the infringement by posting links to games and encouraging others to view infringing material.

Media Streaming-A Legal Standpoint

The main question that the court deals with is whether 'streaming' technology constitutes a 'transmission' of information, as per the requirements of the copyright law. The trickiness of this issue stems from the fact that traditionally, the transmission of information was defined as information leaving location a and arriving at location b. However, with streaming, there is no transfer of information. Consequently, the court tackled this issue from a different angle. It ruled that as opposed to illegal copying or downloading of infringing material, streaming is actually much more similar to the 'classic' infringement of 'broadcasting'-allowing the public to view a production without having a copy of the production stay in the possession of the viewers at the end.

The court also referred to the private users accessing the site by saying that Israeli law permits incidental use of productions in a manner that does not leave the user with a copy of the production after he is done with its use. To that effect, there is no room to put any of the blame on the private users. Copyright laws are meant to create a balance in which they encourage creators and artists to create by granting them certain rights to their creations, while still allowing the public access to new and innovative creations. Therefore, the blame is to be put solely on the broadcasters of infringing materials and not the public who simply have a desire for the consumption of artistic productions.

In summation, the court decided in this issue that the owner was infringing the intellectual property of the league by broadcasting whole sporting events in a manner that severely damaged the protected production's market. The court ordered the closing of the website. 

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