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

Thu, Mar 9th 2017 3:22am — Glyn Moody

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.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, kodi, legality, streaming, uk

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Any moose cow word, 9 Mar 2017 @ 3:39am

We can expect the streaming loophole to be closed soon. Large piles of cash suddenly appearing in EU parliament would merely be a coincidence.
[ link to this | view in thread ]
Stephen T. Stone (profile), 9 Mar 2017 @ 3:50am

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.
[ link to this | view in thread ]
My_Name_Here, 9 Mar 2017 @ 4:16am

This comment will be moderated for a while... Thanks TD!
My take on this is one of those situations similar to what we have and continue to face in Canada with sat TV service. It's illegal to sell "grey market" DirecTV service in Canada, and a number of companies ate it big time. However, consumers pretty much get off without a glance, even with dishes clearly visible on their homes with DirecTV written on them, pointing in the correct direction to get US but not Canadian services.

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.
[ link to this | view in thread ]
Ninja (profile), 9 Mar 2017 @ 5:09am

If they focused that much energy into providing ease of access for fair pricing we'd have awesome services and probably better content. But hey, let's sue the Government for our failure to develop compelling services (https://torrentfreak.com/filmmakers-take-dutch-state-court-lost-piracy-revenue-170309/).
[ link to this | view in thread ]
PaulT (profile), 9 Mar 2017 @ 5:10am

"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"

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.
[ link to this | view in thread ]
Cowardly Lion, 9 Mar 2017 @ 5:20am

Trading Standards
Just to clarify something: whilst Trading Standards in the UK *does* indeed have a significant enforcement division, it generally weighs in on the side of consumers, holding organizations and businesses to account. It used to be known as "Weights and Measures", making sure that a pint was a pint, and so on.

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.
[ link to this | view in thread ]
peter, 9 Mar 2017 @ 5:28am

But on the same day....
'Kodi crackdown: Premier League wins High Court order to block illegal streams'
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
[ link to this | view in thread ]
Anonymous Coward, 9 Mar 2017 @ 6:37am

The box itself is legal as well as some of it's add-ons it's just this "fully-loaded" box add-on is illegal.

That's really how it should be.
[ link to this | view in thread ]
TheResidentSkeptic (profile), 9 Mar 2017 @ 6:53am

Windmills
Scammers
Spammers
SMS Spammers
Infringers (aka "Pirates")
Freetards
Torrents
Kodi et al.

And today, in the part of Don, we have
[ link to this | view in thread ]
orbitalinsertion (profile), 9 Mar 2017 @ 7:47am

Re:
Just like the way they made it illegal in the first place, rather than a civil matter, in cases outside the mass sale of content to which one does not have the rights.

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.
[ link to this | view in thread ]
orbitalinsertion (profile), 9 Mar 2017 @ 7:50am

Re:
Display devices might be used for infringing copyright, so they should be made illegal.

Oh, wait...
[ link to this | view in thread ]
Ninja (profile), 9 Mar 2017 @ 8:30am

Re:
That. And they could take cues of what people want and offer it themselves (the ones behind the lawsuit). And in that scenario I obviously invented e-mail.
[ link to this | view in thread ]
pouar (profile), 9 Mar 2017 @ 9:03am

Umm, is there a difference? other than the computer tossing the downloaded data afterward?
[ link to this | view in thread ]
Anonymous Coward, 9 Mar 2017 @ 9:34am

Re:
Only to the technologically clueless.
[ link to this | view in thread ]
Bergman (profile), 9 Mar 2017 @ 11:16am

Re:
If merely watching something illegal were itself illegal, you could get the entire EU parliament arrested by projecting an illicitly copied video on the wall near them.
[ link to this | view in thread ]
Eldakka (profile), 9 Mar 2017 @ 4:18pm

Re: But on the same day....
I'm not sure why those stories deserve 'but' in relation to this article.

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.
[ link to this | view in thread ]
Anonymous Coward, 9 Mar 2017 @ 4:38pm

Re: This comment will be moderated for a while... Thanks TD!
How's your campaign against body cameras coming along?
[ link to this | view in thread ]
Wendy Cockcroft, 10 Mar 2017 @ 6:02am

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.
[ link to this | view in thread ]
The Wanderer (profile), 10 Mar 2017 @ 6:44am

Re: This comment will be moderated for a while... Thanks TD!
Given that there's a reply to your comment timestamped barely 22 minutes later, it looks very much as if your comment was not held for moderation at all - or at the very least, not for any meaningful length of time.
[ link to this | view in thread ]
Anonymous Coward, 23 Nov 2018 @ 10:24pm

In the short time if we have need any things to do in the internet explorer then http://internetexplorerwindows10.com we can set our goal by the help of this site and then you can feel best.
[ link to this | view in thread ]
jennifergrace, 13 May 2019 @ 10:59pm

Re
As various streams having various sources all blend their waters in the ocean, so various inclinations, different however they show up, It is simpler to feel than to acknowledge, or in any capacity clarify https://www.usaassignmentservice.com. The sizes of the stones and trees and streams are so carefully blended, they are for the most part covered up.
[ link to this | view in thread ]
andrewjackson (profile), 9 Jan 2020 @ 3:07am

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.
The time is Winter Season you need to safety and enjoy the winter with us. https://www.jacketscreator.com/product/indiana-jones-leather-jacket/
[ link to this | view in thread ]
Jackson Martin (profile), 26 Jul 2021 @ 11:51pm

The Princesses of Power Jacket
The article you have shared is very amazing. I am very glad to read your article. keep sharing The Princesses of Power Jacket
[ link to this | view in thread ]