Advocacy body the Electronic Frontier Foundation (EFF) – which defends civil liberties in the digital world – has described recent initiatives by copyright enforcement bodies against preconfigured Kodi boxes as “abusive”, suggesting that courts should reject such expansions of copyright liability.
In a Deeplinks Blog Post, The War on General-Purpose Computing Turns on the Streaming Media Box Community, Jeremy Malcolm and Mitch Stoltz note that for most of the lifetime of Kodi since its release as XMBC in 2002, it was an obscure piece of free software that geeks used to manage their home media collections. “But in the past few years, the sale of preconfigured Kodi boxes, and the availability of a range of plugins providing access to streaming media, has seen the software’s popularity balloon—and made it the latest target of Hollywood’s copyright enforcement juggernaut,” they advise.
“We’ve seen this in the appearance of streaming media boxes as an enforcement priority in the US Trade Representative’s Special 301 Report, in proposals for new legislation targeting the sale of ‘illicit’ media boxes, and in lawsuits that have been brought on both sides of the Atlantic to address the ‘problem’ that media boxes running Kodi, like any Web browser, can be used to access media streams that were not authorised by the copyright holder. We’ve also seen it in the big TV networks’ vehement, sometimes disingenuous opposition to the US law and regulations that mandate effective competition in the cable set-top box market,” they contend.
According to the pair, the difficulty facing the titans of TV is that since neither those who sell Kodi boxes, nor those who write or host add-ons for the software, are engaging in any unauthorised copying by doing so, cases targeting these parties have to rely on other legal theories. “So far, several legal theories have been used; one in Europe against sellers of Kodi boxes, one in Canada against the owner of the popular Kodi add-on repository TVAddons, and two in the United States against TVAddons and a plugin developer,” they report.
In Europe, the case Stichting Brein v Jack Frederik Wullems (Filmspeler) was brought against a seller of Kodi boxes that came pre-installed with third-party plugins that were configured to access copyright-infringing streams. Malcolm and Stoltz say that although the seller was not engaged in any unauthorised reproduction of copyright works himself, the Court of Justice of the European Union ruled in April 2017 that because the boxes were configured with plugins that linked to copyright-infringing content, the defendant was infringing the copyright holder’s exclusive power to control “communication to the public” of a copyright work.
“The finding that the seller had engaged in a ‘communication to the public’ is, to be charitable, a stretch; especially because recital 27 of Europe’s Copyright Directive states that “the mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication’,” they suggest. “As best as we can explain it, the court reasoned that the provision of the pre-configured Kodi boxes was, in practical terms, a necessary step enabling end users to access the copyright-infringing steams, since these streams were not readily accessible other than by use of Kodi configured with a plugin to access them. The judgment built upon an earlier bad decision that outlawed merely hyperlinking to copyright-infringing content if the party who posted the link knew that the content was infringing; and that they would be presumed to have such knowledge if the hyperlink was posted for financial gain,” they add.
The second legal theory that has been used against the Kodi community is that helping people get add-ons that can infringe copyright amounts to an inducement or authorisation of users’ copyright infringements. This claim has been used to bring complaints and threats against add-on developers, resulting in several of them shutting down, and also forms the basis of a lawsuit against the host of a repository of such add-ons, TVAddons, brought by Canadian telecommunications companies Bell, Videotron, Rogers and TVA.
They contend that it is “undisputed” that the vast majority of the Kodi add-ons hosted at TVAddons were not infringing. “Although some add-ons facilitate the users’ access to copyright-infringing streams, there is a strong case that no wrong has been committed by TVAddons for merely hosting them online for download. Canadian law, like American law, provides web hosts with a ‘safe harbor’ making them ‘exempt from liability when they act strictly as intermediaries in communication, caching and hosting activities’, they say, arguing that the lawsuit against TVAddons seeks to skirt that important protection by arguing that by merely hosting, distributing and promoting Kodi add-ons, the TVAddons administrator is liable for inducing or authorising copyright infringements later committed using those add-ons. “This argument, were it to succeed, would create new uncertainty and risk for distributors of any software that could be used to engage in copyright infringement,” they warn.
In conclusion, Malcolm and Stoltz suggest that the lawsuits by big TV incumbents seem to have a few goals: to expand the scope of secondary copyright infringement yet again, to force major Kodi add-on distributors off of the Internet, and to smear and discourage open source, freely configurable media players by focusing on the few bad actors in that ecosystem. “The courts should reject these expansions of copyright liability, and TV networks should not target neutral platforms and technologies for abusive lawsuits,” they declare.