UK Local Government Confirms Surprising EU Position That Viewing Pirated Streams Probably Isn't Illegal
from the but-a-key-court-ruling-may-change-that-soon dept
A couple of years ago, the MPAA was freaking out about a piece of free software called Popcorn Time. Even though it was hugely popular as a result of its ease of use -- and access to large numbers of infringing copies of films -- it had a serious weakness. Since Popcorn Time was basically a BitTorrent client with an integrated media player, it was often possible to track down people who were using it. That fact, and the increasingly heavy-handed legal action taken against some sites that only had a vague connection with the Popcorn Time software, led to people moving on to more discreet alternatives that are based on direct streaming. One of the most popular today is Kodi, which describes itself as a "software media center for playing videos, music, pictures, games, and more." Like Popcorn time, it is also open source, but it does not include a BitTorrent client. Instead, as its website says:
you should provide your own content from a local or remote storage location, DVD, Blu-Ray or any other media carrier that you own. Additionally Kodi allows you to install third-party plugins that may provide access to content that is freely available on the official content provider website. The watching or listening of illegal or pirated content which would otherwise need to be paid for is not endorsed or approved by Team Kodi.
That distinction between the main code and third-party plugins has meant that it is generally accepted that Kodi itself is perfectly legal. The problem arises when third-party plugins are added that allow users to stream pirated content, typically through what are called "fully-loaded" boxes, which are sold very cheaply -- one benefit of using open source. There are two issues here: is it legal to sell these "fully-loaded" boxes, and is it legal to use them?
The UK authorities clearly think that selling these boxes is illegal: recently, five people were arrested for doing so. On the second question -- is it legal to use these boxes? -- an interesting article published in The Derby Telegraph quotes a spokesperson for the UK local government department known as Trading Standards as saying:
Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws.
That might seem a surprising position for an enforcement department to take, but support for it comes from an unusual quarter, as TorrentFreak noted in an article last year:
the European Commission doesn’t believe that consumers who watch pirate streams are infringing. From the user’s perspective they equate streaming to watching, which is legitimate.
The European Commission gave its view during the hearing of an important case currently before Europe's highest court involving the Dutch anti-piracy group BREIN, which wrote in its summary of the hearing:
The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is 'plug & play'. This king of pre-programmed player usually are offered with slogans like 'never pay again for the newest films and series' and 'completely legal, downloading from illegal sources is prohibited but streaming is allowed'. In summary the pre-judicial questions concern whether the seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.
The judgment from the Court of Justice of the European Union is expected soon, and will lay down whether the sale and use of "fully-loaded" boxes is legal across the EU. Meanwhile, in the UK, a consultation has just been launched on the subject, whose title -- "Illicit IPTV Streaming Devices" (pdf) -- suggests the government there has already made up its mind on the matter.
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Which has a bit to do with a comment below about who rightsholders and their private government police forces choose to go after for infringement, and how ridiculously out of proportion punishments are for average individuals.
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You would think they would want to stop the actual streamers, rather than just cut down on the amount of ways people can view the streams.
Then again, logic has no place in government.
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This comment will be moderated for a while... Thanks TD!
It also parallels the download world. While it may or may not be technically illegal to download a pirated movie, the rights holders and the legal system are more interested in the pirates. Those people who capture, encode, and/or seed the pirated content are the ones the law is looking for - as well as the website operators that profit from the piracy.
My guess is the ruling will go this way: Selling the boxes "loaded" would be illegal, as the intent of adding the "load" is aid and abet piracy, and to profit from it. Selling the boxes unloaded wouldn't be an issue. If the consumer chooses by themselves to "load" the box, then it's on them.
The source of the streams is the important legal target. In the same way that working to shut down sites that sell or provide sat TV "cards" or bypass coding. Take one of those out, and you end up interrupting service for plenty of end users. Taking end users out one at a time is whack a mole at a level that makes no sense for anyone.
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Re: This comment will be moderated for a while... Thanks TD!
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Re: This comment will be moderated for a while... Thanks TD!
That is a reasonable comment, My_Name_Here.
I get moderated too, and don't have a cow. You might have triggered a warning algorithm. This is why DMCA takedowns are so problematic and also take down legit content.
I have one criticism of your comment, though:
...the rights holders and the legal system are more interested in the pirates...
If that were true speculative invoicing of random strangers via IP addresses wouldn't be a thing. However, the principle of going after the people responsible for making the infringing content available is a sound one; it's reasonable to go after those people for infringement.
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Re: This comment will be moderated for a while... Thanks TD!
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Well, there we have the problem. The device itself isn't infringing, but it contains links to links that might be infringing (not 100% of the content on those sites will be infringing, and not 100% of the add-ons will be for such links).
It's true that if a seller is advertising the boxes as a means to access content illegally, then that needs to be dealt with. But, they also need to take care not to inadvertently block perfectly legal uses. Kodi is legal, its add ons are legal, certain use cases may not be. That's the way it needs to stay.
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Oh, wait...
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Trading Standards
I'm not aware of any remit it has to monitor and enforce copyright infringement, hence the proliferation of outfits like FACT. I'm not so surprised that it's taken this position.
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But on the same day....
https://arstechnica.co.uk/tech-policy/2017/03/kodi-crackdown-premier-league-high-court-order -block-illegal-streams/
And....
Kodi court case: Teesside man hit with £250,000 bill for selling pre-loaded TV boxes.
http://www.gazettelive.co.uk/news/teesside-news/kodi-court-case-teesside-man-12699035
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Re: But on the same day....
This TD article is about it not being illegal for *consumers* to access copyrighted streams. It does not say it is legal for someone to *provide* copyrighted streams.
The linked stories refer to the *provider* of the streams being illegal and ISPs being forced to block the *provider*. It has not ordered any actions against *consumers* of the streams.
Therefore the linked stories are completely compatible with this article, not a 'but' situation.
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That's really how it should be.
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Windmills
Spammers
SMS Spammers
Infringers (aka "Pirates")
Freetards
Torrents
Kodi et al.
And today, in the part of Don, we have
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Moderation By govt legal
The source of the streams is the important legal target. In the same way that working to shut down sites that sell or provide sat TV "cards" or bypass coding. Take one of those out, and you end up interrupting service for plenty of end users. Taking end users out one at a time is whack a mole at a level that makes no sense for anyone.
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