Mostly running Android, these devices are often supplied with software such as the neutral Kodi platform augmented with third-party addons, each designed to receive the latest films, TV shows or live sports, with minimum input from the user.
One of perhaps hundreds of sites involved in these sales was Netherlands-based Filmspeler.nl (Movie Player), an online store that found itself targeted by Dutch anti-piracy group BREIN. Filmspeler’s owners felt that its pre-configured devices were legal, arguing that their sale did not amount to a “communication to the public” as determined by the EU Copyright Directive.
In 2015, the Dutch District Court referred the case to the EU Court of Justice. It was asked to consider whether it’s illegal to sell a product (in this case a media player) with pre-installed add-ons containing hyperlinks to websites from where copyrighted works such as movies, TV shows and live broadcasts are made available without copyright holders’ permission.
A year later, Advocate General (AG) Campos Sánchez-Bordona issued his recommendation to the Court.
Describing how Filmspeler owner Mr. Wullems knowingly added infringing add-ons to Kodi devices, with hyperlinks to content published by known ‘pirate’ sites, the AG added that Filmspeler advertised its media players as ways to watch content without paying. This, he said, amounted to a communication to the public and hence copyright infringement.
But while the AG’s opinion was important, it is the EU Court of Justice’s opinion that holds absolute legal weight. After months of deliberation it handed down its decision a few minutes ago and it’s bad news for purveyors of ‘pirate’ devices all around the EU.
In a long and complex ruling, the ECJ said that a media player with pre-installed addons, accessed through structured menus, grants users “direct access to the protected works published without the permission of the copyright owners” and “must be regarded as an act of communication to the public.”
That large numbers of people have bought these players was taken by the Court to mean that there are an “indeterminate number of potential viewers” involving a large number of people (the public).
On the crucial question of whether the copyright works were transmitted to a “new public”, the Court found that the audience for these devices was not something taken into account by the copyright holders when they first gave permission for their works to be distributed.
Referencing the earlier GS Media case, the ECJ placed emphasis on whether links were offered in the knowledge they were infringing and whether the subsequent communication to the public had a profit element.
“It is common ground that the sale of the movie player took place in the knowledge that the player came installed with add-ons containing hyperlinks providing access to works that are placed illegally on the internet,” the decision reads.
“Moreover, it can not be denied that the media player was provided for the purpose of profit because the player was bought in order to obtain direct access to the protected works, which were accessible from streaming sites without consent from the copyright holders.
“Thus, the sale of such a media player should be considered a ‘communication to the public’ within the meaning of Article 3, paragraph 1 of Directive 2001/29.”
Having determined that such piracy-configured players can be considered infringing by EU member courts, the ECJ goes on to provide greater clarity on the status of copyrighted content streamed on the Internet without copyright holders’ permission.
The ECJ states that reproduction of content may only be exempt from reproduction rights when it fulfils five conditions:
– When the operation is temporary
– Transient or incidental
– An integral part of a technological process
– For the sole purpose of facilitation within a lawful intermediary
– The act has no independent economic significance
Since copyrighted works are obtained from streaming websites without obtaining permission from copyright holders, the above standards are not met and no copyright exceptions are available. Streaming copyrighted content from an illicit source can therefore be considered illegal.
The Filmspeler case will now head back to the Dutch court but this decision is likely to echo all around Europe and have a notable and immediate effect on cases involving ‘pirate’ boxes and illicit streaming.
The full decision will be published later today.
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