Selling devices pre-configured to obtain copyright-infringing content is illegal

Selling devices pre-configured to obtain copyright-infringing content is illegal, the European Court of Justice effectively ruled today. The decision, which evolved from a case involving anti-piracy group BREIN and a shop that sold piracy-configured media players, will have far-reaching consequences across the EU, particularly for those selling piracy-enabled Kodi setups.

Probably the biggest story in online piracy scene over the past 12 months has been the massive increase in popularity of piracy-configured set-top devices.

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 ‘filmerspeler’ multimedia player was made in full knowledge of the fact that the add-ons containing hyperlinks pre-installed on that player gave access to works published illegally on the internet,” the decision reads.

“In addition, it cannot be disputed that the multimedia player is supplied with a view to making a profit, the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders.

“Therefore, it is necessary to hold that the sale of such a multimedia player constitutes a ‘communication to the public’, within the meaning of Article 3(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 act is temporary
– When it’s transient or incidental
– When it’s an integral and essential part of a technological process
– When the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or protected subject matter
– 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 completely 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 pending cases involving ‘pirate’ boxes and illicit streaming.

Update: The two key points from the decision, as published by the ECJ.

1. The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as covering the sale of a multimedia player, such as that at issue in the main proceedings, on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites — that are freely accessible to the public — on which copyright-protected works have been made available to the public without the consent of the right holders.

2. Article 5(1) and (5) of Directive 2001/29 must be interpreted as meaning that acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions.

Source

That should stop all the eBay sales then. I assume everyone will start buying the boxes in from China now then.

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Originally Posted by piggzy

That should stop all the eBay sales then. I assume everyone will start buying the boxes in from China now then.

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It should stop all Ebay and Amazon sales of Pre-Loaded android boxes, always boils my piss that they never go kicking in their doors at 6am and always target the little guy when the amount sold through their services is thousands of times that of any single trader.

So they will now sell on facebook and gumtree and any other selling platform. Also the sellers will probably just attempt to sell without any addons with a small instruction leaflet on how to download and install their wizard.....Think the reality is this just gives TS and fact ect more scope when getting rid of the little shops on the high street and the few that get sold at local car boots and markets.....That way TS and FACT get to show there "success" in their efforts to tackle piracy and shifts the complete technophobe back towards some sort of legit viewing.

They should target the streams. If people boxes constantly had issues with streams going down they would bin em off pretty quickly. It would deter the buyers

Oi, you leave my streams alone. They're just fine as they are.

When we leaving Europe again?

All that will happen is people will have a box with stock Android and the user will have to do the bits and bobs to get it to play

Easy peasy really, and if not google/youtube is your friend

The main point of this is there are loads of cases lined up including that Brian Thompson from Middlesbrough, he will plead guilty now or if he's a fucking idiot and does not take legal advice will be found guilty as he now has no defence.

I've just bought a new sony TV with Android TV built in. I suspect a more unscrupulous individual could have installed kodi on it (which was pushed as a featured app on the home screen, by the way) along with a VPN app (I'm also surprised any of those are allowed in the Android TV play store), and then go crazy installing numerous add-ons etc. I didn't, of course. Morally I wouldn't be able to live with myself, and technically I'm not up to it anyway.

KODI is a totally legit platform it's add-ons that get used for illicit purposes and the developers distance themselves from these and condemn them although they were not so shy when it was XBMC and in the Xbox days actively encouraged them and maybe even developed them but I guess they are wearing white hats now.

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Originally Posted by Bald Bouncer

KODI is a totally legit platform it's add-ons that get used for illicit purposes and the developers distance themselves from these and condemn them although they were not so shy when it was XBMC and in the Xbox days actively encouraged them and maybe even developed them but I guess they are wearing white hats now.

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Even though it's legit, I'm still surprised Google have not bowed to the inevitable pressure they must be getting from groups like the MPAA to remove it from the play store. Clearly Google are too big to pushed around by industry special interests, and kodi is undoubtedly a huge selling point for Android TV.

Good news for me, I can make a shed load more cash setting up people's boxes for them!

Sent from my SM-G920F using Tapatalk

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Originally Posted by CzarJunkie

Even though it's legit, I'm still surprised Google have not bowed to the inevitable pressure they must be getting from groups like the MPAA to remove it from the play store. Clearly Google are too big to pushed around by industry special interests, and kodi is undoubtedly a huge selling point for Android TV.

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I agree they are not beyond using pressure on them, I have no evidence or have seen no evidence but rumour was there was some sort of cooperation between Microsoft and some of the XBMC developers so might be they have someone watching out for them who knows.

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Originally Posted by BigBrand

Good news for me, I can make a shed load more cash setting up people's boxes for them!

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You do realise that is still illegal and it's up to you but the last thing I would be doing is admitting to criminal activity on a public forum.

I'm pretty sure I'll be OK. Fuck it, whilst I'm at it, I once driven off from a petrol station without paying, I've stolen a diam bar in 97, and I also drive at 95 mph on the motorway.

Come and get me mother fuckers!

😁

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Originally Posted by BigBrand

I'm pretty sure I'll be OK. Fuck it, whilst I'm at it, I once driven off from a petrol station without paying, I've stolen a diam bar in 97, and I also drive at 95 mph on the motorway.

Come and get me mother fuckers!

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Well congratulations but I don't think any of them carry a 10 year maximum sentence and on average I would say about 2 years behind bars not to mention POCA taking everything you own

Ok Mr Serious, I get your point, but I'll take my chances!

Now where's that TV licence reminder...

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Originally Posted by BigBrand

Ok Mr Serious, I get your point, but I'll take my chances!

Now where's that TV licence reminder...

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I was trying to give a bit of helpful advice as I know at least 20 people over the years that stuff they have posted to social media and on forums has been an integral part of the prosecutions case.

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Originally Posted by Bald Bouncer

I was trying to give a bit of helpful advice as I know at least 20 people over the years that stuff they have posted to social media and on forums has been an integral part of the prosecutions case.

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Noted.

Still gonna do it though.

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This will be tackled so simply.
Step 1 - Deliver brand new device
Step 2 - Click this link, install from within browser on Droid Box = Profit.
The sale of these boxes does frustrate me, they are literally littered all over the internet.
Even someone I work with is offering to "fully load" a Kodi install for £15 with a 24hr turn round.