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