Inconsistency in footie cases

It is not surprising that a great deal of publicity is given to licensees who manage to avoid conviction for dishonestly receiving satellite football transmissions through a foreign decoder (“Hosts cleared in satellite footie case”, PMA 1 September 2011). It seems as if the Sky dominance of the market has been holed below the waterline once again.

But this is not entirely the true picture. It expresses more the fact that, as with a number of prosecutions of this kind, the prosecutor has to do his homework and get every aspect of the charges and evidence right. In the case of Media Protection Services (MPS), which acts on behalf of the Premier League and others, this is not always cut and dried. It has some patchy form here.

The legal position currently is that the use of foreign decoders from outside the EC is a clear breach of the copyright position and should be widely known, but is not if you do not read PMA regularly.

Many people operating pubs do so in ignorance of the law, it would seem, and in this case it would appear to be a defence.
To establish a conviction under the Copyright, Designs and Patents Act (CDPA), it has to be shown that the person using the equipment did so “dishonestly”, so that he or she knew that what they were doing was wrong. The defence regularly run in these cases is that the pub licensee relied on the assurances of the equipment supplier and the fact that they had paid out money by way of a fee or charge, honestly believing that this entitled them to operate the equipment lawfully in this country.

The judge in the recent set of cases was clearly of the view that MPS had not made out the case for “guilty knowledge” against some of the individuals concerned, so they could not be convicted. However, in another similar case there was a conviction, which shows it is the evidence, not the legal facts, that is paramount when the matter comes to court.

It is not surprising that I still receive a regular flow of emails from aggrieved licensees who see the pubs around them happily showing non-Sky football, while they are told that it is illegal. They also assume that the Murphy case will ‘put everything right’, which I recently commented was not entirely true. The complex issues of European competition law are a far cry from the realities of life in towns and cities like Portsmouth or Stoke-on-Trent.
Copyright agencies that take enforcement action do not do so globally, because they either do not have the resources or they rely on publicity in papers such as this to do some of their work for them. Prosecutions are taken as much to deter others as they are to punish the individual licensees involved. This is why it would appear to be so unfair when so many get away with it while others are hauled into court.

There is no quick fix for this dilemma, however. Whichever way the Murphy and suppliers decisions go, there will still be someone who holds the rights to TV Premier League soccer and will sell them or market them in order to make a profit. Pubs will have to pay for whichever rights they wish to use, and the law will be invoked to enforce those rights if you try to get it all for nothing or next to nothing.

But with such a complicated set of legal provisions, the defence of confusion and misunderstanding will still serve some licensees well, if it ever gets to court!