After protest, disappointment, hand-wringing, and at times, sheer frustration, the European Commission has officially unveiled its full recommendation for combating piracy of live sports and musical events.
The Recommendation
The European Commission begins with a broad overview of the value of live events and the problems faced by rightsholders when tackling pirate IPTV and similar unlicensed streaming services.
From a reference perspective, particularly related to specific challenges and various aspects of relevant law, the EC's recommendation provides a great overview that makes for interesting reading. If explaining the illegal streaming problem had been the main aim, the document would receive solid marks. As a road map for solving tough issues in a short time frame, not so much.
Right from the very beginning it's extremely clear that the EC understands almost every aspect of the challenges faced by rightsholders. Unfortunately, the vast majority of the report is dedicated to coverage of those challenges, for consumption by the very entities that supplied the information to the EC in the first place. Some of the key points in the initial overview can be summarized as follows:
Unauthorized supply, technical challenges
– Main value in live sports broadcasts lies in the exploitation of live transmission
– Illegal retransmissions can cause significant losses to rightsholders/broadcasters
– Increasingly sophisticated means make content available via IPTV/apps/websites
– Streaming piracy is a global phenomenon, increasingly reliant on 'offshore hosting'
– Offshore hosting minimizes pirates' exposure to copyright or criminal law in the EU
– 'Piracy-as-a-Service' makes it easy to create pirate sites and start generate revenue
– Some infringing services mirror legitimate streaming services
– CDNs/reverse proxies often misused to obfuscate sources of pirate streams
These issues are common knowledge and the subject of countless reports, mostly published by rightsholders; the presence of the terms 'offshore hosting' and 'Piracy-as-a-Service' are evidence of that. What rightsholders want are solutions to these problems because, as things stand, the law doesn't have enough teeth, they insist.
Having denied calls for new legislation anytime soon, the challenge for the EC was to come up with credible new ideas or fresh angles that might have smoothed the choppy waters for a couple of years. Instead, rightsholders who understand the finest intracies of relevant law (because they work with it, and within it, every single day) were presented with an overview of existing law, summarized below:
Role of ISPs and other intermediaries, relevant law
– ISPs provide connectivity to end users and a gateway to all online content
– Intermediaries have crucial role to assist in removal/disabling of pirate streams
– Tools already exist under EU law to combat unauthorised retransmissions:
– Injunctions Art 8(3) of Directive 2001/29/EC / Arts 9 and 11 of Directive 2004/48/EC
– General framework to ensure safe online environment (Reg (EU) 2022/2065)
– Certain intermediaries are able to remove content on receipt of a notice
– ISPs only obliged to act on the basis of an injunction
When calls for new law were rejected, it was inevitable that rightsholders and broadcasters would have to continue working with the tools they already have, for at least another two to three years. The EC's recommendation focuses on a specific tool that rightsholders claim is extremely effective but could be used more.
Commonly targeted at consumer ISPs, so-called 'dynamic/live' injunctions aim to frustrate consumption of illegal IPTV services. They are well developed, highly flexible, and already tested in Italy, France, Portugal, and Greece. Rightsholders know them inside out.
While rightsholders always appear keen to expand the reach of live blocking orders, the EC recommendation highlights both benefits and drawbacks.
"Other providers of intermediary services may be misused to facilitate unauthorised retransmissions or to circumvent blocking injunctions," the EC notes.
"For instance, content delivery networks and reverse proxies may be used to obfuscate the origin of the unauthorized retransmission, while alternative DNS resolvers and proxy services such as Virtual Private Networks (VPNs) may be used to facilitate access to services that have been blocked."
The EC offers a potential solution to these workarounds but framing it as optimistic would seriously overstate any realistic chance of success.
Encouraging Cooperation and Collaboration
Throughout the recommendation the EC notes that Member States should be "encouraged" to take certain actions, or maybe intermediaries might see their way clear to helping out, but there's rarely even a hint that those actions are required by law.
On the topic of VPNs and DNS helping to circumvent blocking injunctions, the EC says that "providers of intermediary services should consider whether they could take further voluntary measures to prevent their services from being misused."
While on one hand the request might seem reasonable, VPN providers' businesses tend to center on privacy so, by default, their subscribers' communications are none of their business, or anyone else's. Any VPN provider that voluntarily participated in a blocking program would likely herald its own demise.
The EC generally notes that it is "necessary to foster collaboration between sports event organizers, holders of rights, providers of intermediary services and public authorities."
There's no question that rightsholders could benefit from successful collaborations but "providers of intermediary services" come in all shapes and sizes, have their own businesses to run, and are acutely aware of what is "necessary" and what's actually required of them under law.
Then there's the not insignificant matter of "providers of intermediary services" operating on the basis it's not "necessary" to process takedown notices, let alone take any content down.
How rightsholders will respond in practice to the recommendation remains to be seen but their work will be monitored and then assessed for effect no later than November 17, 2025.
Rightsholders 'Regret Lack of Ambition'
The Audiovisual Anti-Piracy Alliance (AAPA) wasted no time in responding negatively to the EC recommendation. AAPA's members include the Premier League, Sky, beIN, and Canal+ so have more interest than most in new legislation to "encourage" intermediary compliance.
"Following the publication of the Commission Recommendation on combating online piracy of sports and other live events, the Audiovisual Anti-Piracy Alliance (AAPA) expresses its disappointment and concern regarding the possibility that a review of the effectiveness of the Recommendation may not occur for 2.5 years," AAPA's response begins.
"Not only is this initiative of a non-legislative nature (while the European Parliament, supported by the AAPA and other actors, had previously called for a legislative initiative), the possibility of a 2.5-year assessment period does not address the urgency of the situation."
Action Rightsholders Could Take?
The EC recommendation also calls on rightsholders to "increase the availability, affordability, and attractiveness of their commercial offers" to help deter piracy. AAPA says that from its perspective, "legal offers have never been more as widely and easily accessible than before" while the quality is "viewed as being superior to that found on illegal sources."
From the perspective of live sports consumers, addressing availability and attractiveness but not affordability sits at the very heart of why pirate services became so popular in the first place. Until affordability is properly addressed, no amount of blocking or additional liability for intermediaries will contain the pirate streaming problem.
EC's Recommendation on combating online piracy of sports and other live events (here)
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