An interesting feature of copyright law is its tendency to lag behind the times while new technology races ahead and exploits its numerous ‘loopholes’.
One of the most famous loopholes was ‘exposed’ when streaming overtook BitTorrent to become the delivery method of choice for millions of video-oriented pirates. Most people understood the risks associated with uploading copyrighted content, not least since the word ‘distribution’ is clearly defined in law.
But with streaming, no significant uploading takes place and, just as importantly, no copies of movies or TV shows are made on users’ machines. So, if that wasn’t illegal, how could it be illegal to sell someone a piracy-configured set-top box to consume content in a manner that didn’t break the law?
BREIN Takes on Wullems
Jack Frederik Wullums sold set-top boxes, some of them through his site Filmspeler (Filmplayer). He pre-installed Kodi and a selection of addons on the devices which enabled customers to access pirated copies of movies, TV shows, and live TV. Even though Wullums had no control over what those addons did, Dutch anti-piracy group BREIN insisted that his actions were illegal.
The case went all the way to the Court of Justice of the European Union, which ultimately revealed another interesting feature of copyright law – its ability to accommodate situations that were never envisioned at the time and then close all perceived loopholes.
Illegal Streams Are Illegal
The CJEU said that since copyright holders hold exclusive rights to authorize “communication to the public,” that right was breached when Wullems knowingly modified his ‘Filmspeler’ devices to enable direct access to illegal copies of copyrighted works, for profit.
The idea that the transitory nature of streams qualified for protection under Article 5 of the InfoSoc Directive was also dismissed, in part because the pirate movies and TV shows were (surprise) pirated and therefore undermined the legitimate market.
The final ‘loophole’ was shut down when the CJEU determined that when users of set-top boxes make unlawful use of copyrighted works, that is also illegal (pdf). And with that, BREIN had the authority to target all players in the pirate IPTV market.
BREIN Has Targeted 370 IPTV sellers since ‘Filmspeler’
In a roundup published this week, BREIN reveals that in 2022 alone, it tracked down and identified 19 suppliers of pirate IPTV subscriptions, before dealing with them under civil copyright law. Since the ‘Filmspeler’ decision in 2017, BREIN says it has targeted around 370 IPTV sellers/providers, with cases usually involving settlements of tens of thousands of euros.
“Just last month, the court in Arnhem sentenced a Dutchman living in the Dominican Republic to pay BREIN more than 25,000 euros in costs,” the anti-piracy group notes, adding that when it comes to IPTV pirates, size doesn’t really matter.
“BREIN does not limit itself to just the big fish, even small fry that think they are getting a piece of the pie don’t avoid danger,” says BREIN director Tim Kuik.
Small Fines For Small Traders Prepared to Go Straight
As an example, BREIN says that it recently contacted an online trader about his illegal sales. He agreed to pay a relatively small settlement of 500 euros. On top, BREIN likes to ensure that there’s no return to the illicit market.
The declaration of abstention signed by the seller to get BREIN off his back contained a clause allowing for fines of 1,000 euros per day for repeat offending – or a 500 euro fine for every single hyperlink to infringing content offered to the public.
Criminal Prosecutions Always On The Table
In addition to clarifying liability under civil copyright law, the Filmspeler decision also smoothed the way for prosecutions under criminal law.
In the years that followed, IPTV sellers, providers, and other players acting at scale in the unlicensed streaming market were targeted in the UK, Denmark, France, and the Czech Republic, among others. BREIN says that option remains open in the Netherlands but is considered a last resort.
“Intentional copyright infringement through the sale of illegal IPTV subscriptions is punishable as a crime. BREIN does not exclude the possibility that it will file a report in the event of recidivism or large-scale organized trafficking,” BREIN says.
“The policy of the government, however, is that the rights holders themselves are primarily responsible for enforcing their rights. They have set up the BREIN foundation for this purpose. Criminal law is the last resort.”