Multichoice -vs- ISPs: It’s Not That Straight Forward

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Africas leading DTH satellite broadcaster Multichoice is suing Kenyan mobile operator Safaricom and Jamii communications; an ISP for failing to adhere to the newly enacted copyright laws in Kenya. They allege in their court papers that the two have failed to block access to streaming websites that stream football content which Multichoice holds exclusive rights to in Africa.
Multichoice said in its submission that “The rebroadcasting, re-transmitting or replicating the exclusive content of the applicant without their authorization is a breach of their rights, is unlawful and causes irreparable economic loss to the applicant, not to mention other losses and evils that piracy perpetrates,” They also go ahead to add that the two should block the access to these streaming sites because “Section 35B of the Copyright Act obligates an Internet service provider to take down any infringing content within 48 hours of being served with a takedown notice,” Multichoice also says the two ignored a take down notice issued to them on October 29th.

Nothing to ‘Take down’
Safaricom and Jamii own networks. They then fractionally lease these networks at a fee to their subscribers to enable them access the Internet and other data services or to provide services over the Internet. The very nature of the Internet being a distributed network means that the Jamii or Safaricom network, when connected to the Internet becomes part of the Internet too. On top of the Internet lay services such as the World Wide Web (www), which most people mistake for being the Internet (because that’s often the only part of the Internet they interact with). The www is part of the Internet and is made up of information that is organized and structured in an easy to find way and formatted through web browsers.
The growth of the www over the Internet has led to exponential growth of traffic as more and more users come online. This has necessitated the use of Content Delivery Networks (CDNs) that are basically a group of servers that are geographically close to the end users to deliver the content. This therefore means for example, East African users of Facebook, actually access most popular Facebook content from some servers stationed in Kenya as opposed to accessing it from a Facebook Data center in the US. The same applies for other popular content such as streaming services.

Despite Safaricom and Jamii providing the connection to access the servers that store and format the content , these servers are not owned or managed by them and neither do they sit on their networks bits that form part of the larger Internet, they lack jurisdiction over them. The copyright act in section 35B says “A person whose rights have been infringed by content to which access is being offered by an Internet service provider may request, by way of a takedown notice, that the ISP removes the infringing content,” Its not clear what the word remove entails, is it the blocking of access to the content or shutting down the server that hosts the content. Let us assume it means both. The providers have no way to block access to the illegal streaming websites because these often shadowy websites keep changing addresses to avoid being blocked and the providers have no way of distinguishing between the illegal and illegal streaming. There is no known way of blocking this other than blocking the entire streaming protocol suite which will also affect other streaming services.

Multichoice seems to hinge its hopes on recent court rulings in Ireland and UK where the Premier League successfully petitioned the courts to have ISPs block streaming. However, these rulings were targeted at the servers that host these stream channels. In Season 2018/19 the Premier League removed or blocked over 210,000 live streams and over 360,000 clips of its matches that would otherwise have been available to view in the UK. But this did not come from just getting ISPs to block the streaming servers. It involved measures such as working with social media companies to stop the sharing of live stream addressed during matches, stopping illegal airing of matches which had more effect than having ISPs block access. Multichoice would be better off working with Facebook, Twitter and others to stop the sharing of URLs which usually become available just before match time. In Singapore, the high court ruled in favor of blocking illegal streaming by asking ISPs to block access to specific set top box applications that were being used to stream illegal content, this ruling was specific and targeted and was easy to implement. If Kenyan courts ruled in favor of Multichoice, they might have to list to the court the applications that are being used to access these especially from set-top boxes with streaming capability. This way, they can use the copyright laws to compel the two to block the applications from connecting to the Internet.

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