BBC - Pub Football Fight Hots Up

[bigtee]

From: http://news.bbc.co.uk/2/hi/business/6594775.stm


By Anthony Reuben

An appeal about whether it is legal to use foreign satellite equipment to show live English Premier League football in British pubs is to be heard in the High Court next year and many people's livelihoods depend on the decision.

Karen Murphy runs a very English pub.


It is called The Red, White and Blue, its sign features the Union Flag and it serves proper beer, pork scratchings and scampi fries.

Everything about it is English - except the satellite decoder, which allows it to show live English Premier League football.

That comes from a Greek broadcaster called Nova, which charges Karen about £800 a year - compared with the £6,000 a year that she would have to pay Sky for the service.

She found out about the Nova box through Gales, the brewery that used to own the freehold on her pub.

"At a Gales sales meeting they introduced me to this system and said 'buy it', so I bought it," Ms Murphy says, as she prepares to open her pub for the day.

But the message changed when the brewery was bought out.
"Fullers then took over and sent a letter saying they would advise it was removed," she adds.

'Happy to be used'

It is not just Fullers that holds that view.

The FA Premier League (FAPL) is unhappy about it as well - and is using a company called Media Protection Services to have Ms Murphy, and several other publicans, prosecuted for breaching copyright law.

The FAPL argues that BSkyB has till now had the rights to every Premier League match broadcast live - although from next season Irish sports broadcaster Setanta will also be able show a number of live games.

That, the FAPL says, means that it is illegal to show live Premier League football in a UK pub unless the publican has a valid commercial agreement with BSkyB.
In Karen Murphy's case, the FAPL won in the magistrates' court and the crown court and the case is now the subject of a High Court appeal which will decide whether the use of foreign decoders is illegal.


There are many people with a lot at stake in Ms Murphy's court case, and she accepts that she may be a pawn stuck in the middle of a dispute between larger companies.

"I was quite happy to be used because I wouldn't be doing it if I didn't believe what I was doing," she says.

"I don't want to be dictated to by a monopoly, it's as simple as that."
An FAPL spokesman agreed that people like Ms Murphy were in an awkward position, but blamed the satellite installers.

"I feel sorry for the publicans because they are being used by a group of people who are providing an illegal and misleading service, but ultimately it's the publicans who stand to lose the most," he said.

Loophole?

However, the FAPL refuses to sell live rights to games shown at 3pm on a Saturday afternoon to anyone in the UK - not even BSkyB.

And this, according to the installers, creates a legal let-out clause.
It comes as little surprise that their trade body, the Association of European Satellite System Installers (AESSI), is backing the publicans who are being prosecuted.

Joe Ibrahim, an AESSI member who runs Digital Sales UK, obviously has a great deal at stake too if Ms Murphy loses her appeal.

"We would have to close or try to find some sort of alternative business to do," he says.

"It seems wrong that we should have to do that when as far as we're concerned we haven't broken any law."

Risking everything

Ms Murphy is not the only publican being taken to court for this.

In fact, she is not even the only one on her street.

About five doors down from The Red White and Blue is the Royal Exchange, which is run by Derek Hopper.

The Royal Exchange is also a very English pub - it has a quiz night and a weekly meat raffle.

But its satellite decoder comes from a Moroccan broadcaster called ART.

Publicans such as Mr Hopper and Ms Murphy say they are risking everything to pursue these cases.

"Under the terms of our licensing law, anyone with a criminal record can be deemed by the council as not a fit and proper person and that license can be revoked," he says.

"And it's not just losing your livelihood, it's your house."

Ms Murphy says that she and Mr Hopper are not the only ones using foreign systems in the area.

"There's hundreds of pubs in Portsmouth that do not use Sky and they've only attempted to prosecute five of us," she says.
"Within walking distance from here there's another 20. They all use it for a reason - they obviously can't afford Sky."


The FAPL, for its part, is in no doubt about which law is being broken.

Its cases are being prosecuted under the Copyright, Designs and Patents Act 1988, which centres on whether the publican "dishonestly receives a programme provided from a place in the UK, with intent to avoid payment of any charge applicable to the reception of the programme".

The installers say that their clients are not avoiding making a payment because they are paying the European broadcasters - and in any case, have no charge to avoid since there is no UK broadcaster providing games live at 3pm on a Saturday.

Exclusive rights

The case is likely to feature numerous experts, arguing a huge range of issues which might more usually appear in a civil case - not least that of whether the signals have actually been "provided from a place in the UK".

The FAPL has now started pursuing civil cases against two of the installers and some publicans.

However, success in the criminal courts could serve as a deterrent to other publicans using foreign systems.

The FAPL has an enormous amount at stake in this case, because if it loses then Sky could lose its exclusive live broadcasting rights to certain matches.

If Sky were to lose those rights, it might then try to recoup some of the £1.2bn it is paying for them - and that would be bad news for the Premier League clubs now basing next year's budgets on a massive TV rights windfall.
It could be that the fate of a Portsmouth publican could decide the fortunes of football's biggest names.

[bigtee]

Someone should educate the BBC about ART, "Morroco" and Egypt!

Seriously, I'm naturally on the side of the Pubs and a part of me thinks that the Superior courts will side with them purely on the law --- though you never know, with all the financial interests at stake!

[Jimdefruit]

It all comes down to greed.

If the fapl dont want matches shown and are prepared to forego the income then they dont have to sell the tnasmission rights to companies.

If publicans want to show transmissions genuinely bought, for public showing, from programme providers then they have every right to do so. The confusion is because the fapl and sky did not get their contracts right in the first place. The rights are for transmission, not reception.

Public showing is a matter of contract between the provider and the card holder. If the fapl have a problem with that they can determine the contract with the provider, if the contract so allows. However, they wont do that because they will lose income. They just try to put pressure on the little man.

[BGonaSTICK]

Of course, I'd love the pub landlords to win, but ultimately they won't.

The FAPL sell the rights - they own them. They sell them geographically. In the UK they sold them to Sky.

The fact that the signals go via space doesn't change the spirit of the licensing agreement.

If the FAPL win, it's game over. If the publicans win, the FAPL will just pull another million quid out of the legal account and go at them from a different angle.

I think Jim is probably right about the woolly nature of the contracts - and that's what this comes down to.

For me, this has got little to do with 'law' and more to do with contract breach.

Whatever - you can be fairly sure that the new contracts signed for the 2007/8 seasons will be totally unambiguous.

[bigtee]

Stick

'Contract Breach' is law!

What if the Pub has nothing to do with Sky as in the examples --- where the Pub buys a regular receiver, a subscription to Nova and a dish pointing in the right direction? How is that Pub in breach to either Sky or the FAPL? They are not in contract with either.

So you leave contract law and move to general law - i.e. whether reception/broadcasting of the matches by the Pub violates general law or specific legislation. I really think that on that level there is a strong case that can be made on behalf of the Pubs.

[bigtee]

I've just found another piece partisan toward the Pubs. I have also taken the liberty to highlight the line of argument that I would develop were I arguing the Pubs' corner.

From: _http://www.digitalsales.co.uk/acatalog/Legal.html




AESSI Welcomes the High Court

Application in Premier

League vs Murphy Case

Following the ruling in Portsmouth the case will go to the High Court.

Plucky Portsmouth-based publican Karen Murphy today confirmed that she had, last night, appealed her case to the High Court, following a ruling against her earlier this month in favour of the Premier League's agent, MPS (Media Protection Services). This ruling in the Portsmouth Crown Court completely contradicted that from a previous case heard before the Bolton Crown Court in March 2006 on the same point of Law.

Murphy, like many Licensees, has installed a European Satellite System in her premises, the 'Red, White and Blue' Public House in Southsea. She believed this system to be perfectly legal given Bolton Crown Courts precedent setting ruling on the same point of law (the parties to this were BSkyB, via FACT vs Gannon).

In summing up The Portsmouth case, however, HHJ Ian Pearson, sitting with two lay Justices, upheld Murphy's conviction from the Magistrates Court, stating on several occasions that he strongly disagreed with HHJ Warnocks previous decision in the Bolton case.

A spokesman for AESSI (the Association of European Satellite System Installers), said "we are pleased with the outcome in the Portsmouth case, as the matter will now go to a Higher Court. This will enable a definite Legal Precedent to be set and completely clarify the position regarding the legitimacy of Foreign Satellite Systems in the UK". They added "What's more yesterdays application will mean really good news for Licensees currently under threat by MPS (Media Protection Services, a privately run company with no legal status) as all cases currently ongoing in lesser courts can be placed on-hold pending the High Court decision - expected in approximately 8 months".

As the legitimate professional organisation representing Satellite System Installers the members of AESSI believe that the Premiere League and MPS will not be happy with the Portsmouth outcome as it has resulted in the matter going before a Higher Court as this will ultimately bring an end to their use of the Legal System as a means of intimidation.

AESSI believe that the Premier League have been systematically using the Courts as a method of intimidating Licensees who, AESSI maintain, have actually installed legitimate alternatives to Sky Satellite Systems. The apparent intention of these actions being to use fear of legal costs (win or lose) and aggravation as 'leverage' thus preventing others, as well as those specifically persecuted from showing football matches, ultimately forcing all UK Licensees to switch to using BSkyBs more expensive installation options.

"If this is their intention then it has backfired rather badly on Sky" jokes Joe Ibrahim of AESSI, as, in a bizarre twist, it was revealed today that if Murphy's appeal to the Crown Court is upheld, it would also make illegal the nearly 2 million Sky systems that are presently installed across other countries in the EU. The Premier League may have irreparably severed a major artery of income for BSkyB, potentially costing the broadcaster billions in lost revenue

Simply put, the legislation under which this prosecution was brought, and the Portsmouth Court ruled, was specifically designed to incorporate EU statute 93/83, under which the judgement could be applied throughout the European Union against Sky in favour of the relevant local satellite broadcaster.

In karmic irony, the Premier Leagues relentless pursuit of one tiny public house may have just been the sledgehammer that cracked the table and missed the walnut altogether.

Following the Portsmouth ruling, Mr Phillip Davies, who investigates 'piracy' at Sky, told Iain O'Neil of the Morning Advertiser, with reference to the number of bars in Spain, Greece, France and Portugal showing Premiership football via Sky that this was "not something I am aware of".

In light of this comment, perhaps BSkyB is unaware of the impending impact of the Premier Leagues action upon their non-revenue from their non-existent-installations that they know nothing about.

One can only wonder what fabled, foxy, founder of NewsCorp and ultimate boss of BSkyB, Rupert Murdoch, will make of the matter or indeed of Mr Davies, when, and if, BSkyB finds itself facing multiple criminal prosecutions throughout Europe.

Brief Background:
The Premier League, via their agents MPS, have been bringing multiple prosecutions (up to 300) across the UK in Magistrates Courts with assorted and variable outcomes for over four years causing a great deal of stress to Licensees and costing the taxpayer hundreds of thousands of pounds to date, all with virtually no cost penalty to the Premier League themselves.

MPS, a privately owned company run by self-proclaimed 'disinformation expert', Ray Hoskin, have now, on behalf of the Premier League, taken to pressing criminal charges under an obscure Section of the Copyright, Designs and Patents Act 1988 (which is partially superseded by both Broadcasting Acts) which the DTI confirm is not applicable to the situation, and with which they have had very little success in higher UK courts. The defining case of BSkyB vs Gannon in Bolton ruled in favour of the Publican as they were not pirating but purchasing the broadcast signal from a legitimate European supplier (Judgement transcript available).

Prior to the case, both the DTI and OFCOM had confirmed in writing that AESSI members are operating entirely within the terms of the Broadcasting Acts and in line with European Single Market Legislation. Interestingly, it is under this very 'single-market' legislation that Sky also benefits as it facilitates the installation of their own decoder boxes situated in other operators 'areas' across the European Union. Presently there are estimated at just under 2million Sky installations, supplied via satellite shops and assorted system suppliers situated within the EU - installations that BSkyB include in their total UK figures 'accounted for', that they declare to Investors, the Stock Market, Channel Operators, RAJAR and other official bodies, but about which they apparently "not aware".

About AESSI: The Association of European Satellite Suppliers & Installers is the official organisation of legitimate installers in the UK. AESSI members work to the highest standards of quality and fully guarantee that they will install entirely and completely legal systems.

AESSI members are all law-abiding legitimate businesses who contribute over ten million pounds sterling per annum to the UK economy, they pay tax and VAT and create significant employment directly though their own specialist staff and indirectly through their customers increased revenue.

[BGonaSTICK]

What I mean is that as far as I'm concerned, it's not really about the pubs breaking 'general' law (though that appears to be the basis on which the FAPL is taking them to court) and I agree that there is no contract between the FAPL (not Sky) and the pubs.

The main breach here relates to the contract between the FAPL and the companies that sell (or 'allow the sale of' by turning a blind-eye) thousands of cards outside of their designated geographic area - ART, Nova etc. The poor pub landlords are just easy targets.

This is what happened last year (or was it the year before? - Time flies...) when the FAPL threatened ART and we saw the temporary introduction of the scratch (and sniff) cards. Of course, the procedure lapsed because it suited ART to sell more cards, regardless of where they ended up.

There is also a contract between the original card supplier and the customer (landlord), which I would imagine includes clauses about public viewing :? in the same way that the Sky 'residential' contract does. The foreign cards I've seen are surely intended for domestic use only. I've never seen anything that indicates otherwise.

I doubt very much that this contract would be enforceable under UK law, because it wasn't written to take account of the UK legal system. It's still a big hole in the system though.

The bottom line is that the sale of the rights is clear AFAIC, and the bullies always win because they have more money to throw at it.

[bigtee]

Yes, I see your point. However, Nova, ART, Premiere, DigitAlb or whoever do not exactly seem to be interested in suing the Pubs for breach of the terms of the sale of the cards. This is identical to how Sky turns a blind eye to the fact of a vast number of people using Sky cards (and/or Digiboxes) outside the UK.

The FAPL should really be pursuing Nova, DigitAlb etc and not UK Publicans. In my opinion, Sky should only be suing the FAPL and not Nova, DigitAlb etc and certainly not UK Publicans.

[linsladeboy]

On the subject of geographical regions, are dealers breaking the law if say I bought a German Premiere or French Canal+ card from them as I see that these two TV stations have a Premiership deal for the next 3 years?

[bigtee]

I doubt if they are breaking UK law. I am not sure if they are breaking say German or Albanian law; personally, I would like (to research further) and argue that in view of the free movement of goods and services in the EU, they are not breaking the law.

The other point is whether the foreign package providers (e.g. Premiere, DigitAlb etc) prohibit the sale or use of their cards in the UK. It seems that DigitAlb particularly are happy for their cards to be sold in the UK.

As far as me or you, private individuals are concerned, I will argue that if we buy a card legitimately through a dealer or from a friend or from someone who no longer needs theirs, we are not breaking the law.