Selling media players with pirate add-ons violates EU law, according to a recommendation from Advocate General Campos Sánchez-Bordona. He issued the advice in a landmark case over the legality of pre-loaded XBMC/Kodi devices, which are widely sold across Europe. Whether users of these players also liable depends on whether they know that the content is infringing.

Online streaming continues to gain in popularity, both from authorized and pirate sources.

Particularly popular are Kodi-powered applications or set-top boxes. While Kodi itself is a neutral platform, there are lots of add-ons available that turn it into a pirate’s heaven.

In Europe, the European Court of Justice is currently handling a landmark case that should provide more clarity on the legality of set-top boxes that are sold with “links” to infringing content.

The issue was raised in a case between Dutch anti-piracy group BREIN and the Filmspeler.nl store, which sells “piracy configured” media players. While these devices don’t ‘host’ any infringing content, they ship with add-ons that make it very easy to watch infringing content.

The Dutch District Court referred the case to the EU Court of Justice, and today Advocate General (AG) Campos Sánchez-Bordona issued his recommendation to the Court.

Filmspeler previously argued that there is no communication to the public or crucial intervention from their side, since these pirate add-ons are already publicly available. The AG, however, rejected those arguments.

The AG notes that Filmspeler owner Mr. Wullems knowingly added infringing add-ons to XBMC (Kodi) devices, with hyperlinks to content published by 1Channel, Glow movies HD, Go Movies, Icefilms, Much Movies, Istream, Simply Movies, Simply Player, YIFY Movies HD, Ororo.tv and Teledunet.com.

“Mr. Wullems installed on the user interface of the XBMC software add-ons with hyperlinks to websites providing unrestricted access to copyright-protected works,” the AG writes, adding that it was in part motivated by profit.

Among other things, Filmspeler advertised its media players as a tool for people to watch the latest movies and TV-series, without having to pay.

The AG therefore concludes that selling a media player with the knowledge that it links to infringing material, constitutes a “communication to the public,” which makes it copyright infringing.

The recommendation draws a lot of prarllels with the GS Media case, where the EU Court of Justice ruled that businisses that knowingly post hyperlinks to infringing works on a website, are breaking the law.

Whether the users of these devices are also acting unlawfully is a different question. According to the AG it would be logical to conclude that, when offering devices with pirate add-ons is illegal, using them would be too.

“In my opinion, if the key factor, in the case of a person who inserts a hyperlink without pursuing a profit, is knowledge […] that the protected work is available on the internet unlawfully, it would be difficult not to extend that criterion to a person who merely makes use of that hyperlink, also without pursuing a profit.”

That said, if the users in question are not aware that the content is from an unauthorized source, they should not be liable for copyright infringement.

“Excusable ignorance or reasonable lack of knowledge, on the part of the end user, of the fact that no such authorisation exists could, undoubtedly, exempt the user from liability,” the AG adds.

Liability aside, the AG stresses that this doesn’t mean that streaming copyrighted material is a “lawful use” exception under Article 5(5) of the “InfoSoc” Directive. It therefore doesn’t change the legality of selling pre-loaded media players.

The Advocate General’s advice is often crucial, but not binding. It is expected that the EU Court of Justice will issue its final verdict in this case early next year.