The European Court of Justice ruled that a media player with pre-installed add-ons, 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.”
This means that the sale of a multimedia player which enables films that are available illegally on the Internet to be viewed easily and for free on a television screen could constitute an infringement of copyright, suggesting that the temporary reproduction on a multimedia player of a copyright-protected work obtained by streaming is not exempt from the right of reproduction.
This is bad news for the trade in 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.
The case involved Jack Frederik Wullems of the Netherlands who sells various models of multimedia players over the internet that enable movie files to be easily web-streamed on a TV.
This types of boxes are widely sold across Europe, offering consumers a way to illegally stream movies without the hassle or guilt of going through piracy websites.
The Court recalled, in that regard, its case-law according to which the aim of the directive is to establish a high level of protection for authors. The concept of ‘communication to the public’ must therefore be interpreted broadly. In addition, the Court has already held that the availability, on a website, of clickable links to protected works published without any access restrictions on another website offers users of the first website direct access to those works. That is also the case in respect of a sale of the multimedia player in question.
The Court also observed that, according to the referring court, the multimedia player had been purchased by a fairly large number of people. Furthermore, the communication at issue covers all persons who could potentially acquire that media player and have an Internet connection. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons. In addition, the provision of the multimedia player is made 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.
Given that “the main attraction of that player … is the pre-installation of the add-ons concerned, the Court finds that the purchaser of such a player accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances,” the European Court of Justice located in Kirchberg said in a statement announcing the decision.