Rightsholders usually welcome support at the EU level with open arms, but in this case it only increased frustrations. Last October a huge coalition of rightsholders called on the EC to introduce new law that would compel intermediaries to take pirate streams offline within minutes of a complaint.
The EC refused and offered existing law as the solution. For rightsholders claiming to have exhausted its limits, that clearly wasn’t ideal.
More Evidence Needed
Over a period of several years, rightsholders have reported in fine detail the numerous challenges they face when it comes to tackling piracy of live sports. Dozens of reports spanning thousands of pages have left almost no stone unturned. The issue is comprehensively mapped, to say the least.
This January, the EC issued a call for evidence so that rightsholders and other stakeholders could detail their problems all over again. The aim was to find solutions to these well-documented problems under existing law, which rightsholders insist is inadequate.
Whether anyone learned anything substantially new from that process is unknown but having gone through the motions, the EC’s recommendation will be officially released early May. Perhaps fittingly given the topic, the EC’s report has already leaked online and according to reports, rightsholders are underwhelmed by the document, to put it mildly.
Leaked Report Delivers Disappointment
While it must be frustrating for the EC to see its report publicly rejected in advance of its release, one gets the impression that nobody really expected the EC to come up with anything groundbreaking, at least not on the scale demanded by rightsholders.
Euractiv says the recommendation focuses on the “effective handling of take-down requests, dynamic injunctions, and voluntary cooperation” but for rightsholders already engaged in all of these things and more, that advice seems unlikely to inspire.
An anonymous representative of the Live Content Coalition, which counts the Audiovisual Anti-Piracy Alliance (AAPA) and several other major video groups as members, kept things simple with claims of hollow promises and a failure to act.
“We have consistently been assured by the European Commission that ‘what is illegal offline is illegal online’, yet there appears to be no urgency to enforce the rule of law in the case of piracy, despite the blatant theft of highly valuable, proprietary content which is undeniably taking place,” the unnamed representative told Euractiv.
Commission Suggests and Encourages (But Doesn’t Insist)
On the understanding that all recommendations must exist in the current legal framework, one of the points in Euractiv’s summary is that hosting services will be “asked to collaborate with rightsholders, notably by engaging with trusted flaggers,” to take down pirate streams as quickly as possible. That raises interesting questions.
Firstly, new legislation denied by the EC would more likely than not attempt to hold these same hosting services more liable for their customers’ activities, a major negative for companies in that sector. Yet now, they’re expected to warm to the idea of collaborating with rightsholders voluntarily, including by putting technical solutions in place to speed up the notification process.
In an entirely commercial environment, that leads to the question of incentives. The law doesn’t require collaboration behind its limits and currently protects intermediaries from liability. Not only are these the same protections rightsholders wish to forcibly limit, there appears to be no obvious commercial benefit for service providers.
The biggest conundrum is that the really big players in the pirate streaming market know that rightsholders want to limit their business, but are struggling to do so. The entities providing pirate IPTV infrastructure are selected because they’re good at it and, for one reason or another, are difficult to disrupt and are unlikely to collaborate.
And then there’s this:
“Intermediary services, like web hosting services, that can identify and locate the pirated transmission of live events are encouraged to cooperate with hosting services and rightsholders to identify the source of unauthorized retransmissions and prevent it from popping up again in so-called mirror websites once it is shut down.”
It will be interesting to read the official text to which this relates, and also what type of hosting services the EC has in mind. There are lots of services online that have the ability to identify and locate pirate streams but getting that information from them usually requires a legal process. The idea that this information can be shared between companies voluntarily is bound to raise eyebrows, if indeed that’s what the text suggests.
Action at National Level
Blocking injunctions are common around Europe but for rightsholders, not common enough. The EC suggests that dynamic blocking orders, such as those already in place in the UK and Ireland, should be assessed for suitability in EU countries that don’t currently have them. Again, questions are raised.
If EU countries don’t already have blocking injunctions in place, that suggests that either rightsholders haven’t gone to court to obtain them, or perhaps some kind of obstacle exists locally that renders them overly problematic or costly, for example. How requests for cooperation from the EC can solve these issues quickly is unknown.
The remainder of the suggested measures are really just that – suggestions. Intermediaries that aren’t targeted with an injunction could choose to take “voluntary measures ” to prevent illegal streaming of live events. Advertisers and payment services could ensure that don’t help to finance or facilitate piracy.
Such voluntary actions aren’t unheard of. Perhaps the most notable is Google’s commitment to deindex domains from search results when they appear in court orders, despite those court orders having nothing to do with Google. Fresh requests were filed by Brazil recently and more will surely follow.
The reasons for Google’s cooperation are unknown but it’s highly unlikely it felt a bit sorry for rightsholders and just wanted to help out. Directly or indirectly, whether today or in the future, cooperating will have made commercial sense. If other intermediaries feel it’s in their interests, anything is possible.
Other EC proposals include turning blocked sites into advertising platforms for legal services, encouraging governments to allocate more resources to law enforcement, training judges, and encouraging rightsholders to “increase the availability, affordability, and attractiveness of their commercial offers to end users across the Union.”
There are some who argue that if rightsholders want unprecedented assistance to protect their profits, improving affordability for the public should be mandatory. It isn’t though, and it never will be, no matter how much ‘encouragement takes place.
EUIPO Will Monitor and Report Back
Perhaps the most bitter pill for rightsholders is that they’re unlikely to see changes to the law for at least three years. EUIPO looks set to monitor progress and within 36 months of the recommendation’s adoption, the Commission will assess its effectiveness.
The Live Content Coalition told Euractiv that’s just not good enough.
“The suggestion that the effects of the recommendation be assessed three years after its adoption is completely at odds with the urgency of the situation,” the anonymous representative said.
In the meantime, Italy is reportedly ready to launch the most aggressive live stream IPTV blocking program the world has ever seen – actioned under existing EU law, no amendments needed.