Benayoun celebrates after scoring against Real Madrid last season..
(photo credit: AP)
The English Premier League is one of the world's
leading and most lucrative soccer leagues. Its revenues stem primarily
from the sale of broadcast rights. Much to its dismay, a Web site
called livefooty.com, with some servers in Israel, began to stream
Premier League games, allowing anyone with an Internet connection to
view the games for free.
The Premier League acted to sue the Web site, but
unfortunately was unable to find out who actually runs it. So it went
to court to compel the owner to disclose his identity. In the meantime,
the site's owner is represented anonymously through a lawyer, and the
case reached court as Football Association Premier League versus John
Doe. The league claims that the site is violating its broadcast rights;
the site claims that since it is noncommercial and doesn't make any
money from the broadcast, it is a protected use.
Tel Aviv District Court Justice Michal Agmon-Gonen declined to
take action against livefooty. Her ruling is a classic example of all
that can go wrong when judges arrogate to themselves the role of
The case presents subtleties on the narrow technical issues of
international jurisdiction and identity disclosure. But in her ruling,
Agmon-Gonen sidesteps these issues and jumps directly to the broadest
possible understanding of the case. The case "arouses fundamental
questions regarding intellectual property policy," she writes,
including "the rights of the originator on the one hand and the rights
of the users on the other." Instead of quoting relevant legal
precedent, Agmon-Gonen begins by citing a number of general legal and
even popular works discussing this policy issue.
Setting an alarmist tone, she quotes the jurist
Jeremy Waldron, who warns: "There's a danger whenever we extend
intellectual property rights that we will restrict the freedom of
countless ordinary individuals one by one." Even though Waldron is
talking about legislating property rights and not adjudicating the ones
already legislated, Agmon-Gonen stretches Waldron's point beyond
recognition. While Waldron states that intellectual property
jeopardizes ordinary people trying to enjoy "stories, programs and
ideas," Agmon-Gonen adds: "soccer."
The addition is far from obvious. There doesn't seem to be much
of a threat to freedom in allowing exclusivity for live broadcasts of
soccer games. Culturally and artistically, games are more alike than
different. Even if we somehow accept that soccer games are like works
of art, their artistic value would seem to remain the same in reruns as
in live broadcasts. The idea that access to major sporting events is a
basic human right is a provocative and far-reaching one. But
Agmon-Gonen evidently goes even farther and believes that free access
to all sporting events - anywhere, anytime - is a facet of this right.
Agmon-Gonen is not reticent about her desire to
make policy; she states forthrightly and with minimal defense: "It is
necessary to establish a new balance [of rights] that will be
appropriate for the digital/Internet age."
Agmon-Gonen also adds distributive justice to her list of
policy desiderata. She makes it clear that she considers it her
responsibility to guarantee access to soccer broadcasts to people of
limited means. As support for the right to inexpensive soccer games,
she quotes a former Knesset member who expressed his belief that
legislators (not judges) should act to keep Israeli (not English) games
affordable (not free).
Alongside my objection to judges making decisions on policy
grounds, and admitting it, I consider the policy reasoning flawed. I
would be against a law that allowed free Internet broadcasts of
proprietary sports events. (Such a law would in any case be against
Israel's international obligations.) Making the games free because they
are desirable is counterproductive. The games are desirable precisely
because access is limited. This enables the teams to obtain the revenue
needed for the high level of play, and it also creates the cachet that
makes them prestigious.
To her credit, Agmon-Gonen does her best to find a legal basis
for her policy decision (after all, she is a judge). However, in my
opinion, there is some questionable legal reasoning involved.
Agmon-Gonen decides that even though Israeli law recognizes
broadcast rights, streaming Internet access is not considered a
"broadcast." The reason is that the law defines broadcast as something
transmitted "through wires or wirelessly." This is supposedly different
than Internet, which evidently reaches your computer neither through
wires nor wirelessly but through some other medium.
Agmon-Gonen also considers the Internet broadcasts "fair use."
The fair-use doctrine is a widely accepted legal principle meant to
keep copyrights from choking legitimate public uses of creative works.
To evaluate the judge's claim here, consider the usual criteria
for fair use: the public value of the use; whether the use is
transformative and not merely derivative; the scope of the use; and the
effect on the work's value. Apply these criteria to an exact copy of an
entire broadcast of an ephemeral sporting event made at the exact same
time as the for-pay original. It is clear that the Web-casts meet
virtually none of the criteria for fair use.
Prominent Israeli legal blogger Jonathan Klinger adds an
additional criticism of the fair-use ruling: Fair use is considered a
defense against infringement claims, not an affirmative right as
Even more than I disagree with Agmon-Gonen's policy
prescriptions, and with her legal reasoning, I feel it is necessary to
expose and condemn the tendency of Israeli judges to view themselves as
legislators who attempt to set public policy in the courtroom.
Asher Meir is research director at the Business Ethics Center
of Jerusalem, an independent institute in the Jerusalem College of
Technology (Machon Lev).