Is there a difference between streaming vs. downloading?
When it comes to streaming or downloading copyrighted content online, the European Court of Justice has made it clear – they don’t see a distinction. A quick reading of their recent ruling shows they really don’t like companies selling devices configured for easy access to less-than-legal streaming sites. And a deeper reading raises a lot of question marks about the future liabilities for people using these popular devices to access and watch copyright-protected materials. Only time and a legion of lawyers are going to settle that question.
Dutch treat for pirates
The European Court of Justice ruled in late April that it is effectively illegal to sell a media player device that has been configured for easy access to illicit streaming sites. These devices, used in parallel with a host of streaming sites, have been the latest hot thing in online piracy, enabling people to stream content directly to their TVs.
The court case directly hit the Dutch Filmspeler.nl (Movie Player), an e-commerce store that was marketing these devices as a way to easily access protected material – then selling them with pre-installed links to streaming sites.
The Filmspeler approach amounted to “communication to the public” as defined by the EU Copyright directive by combining hardware and software to give users with “direct access to the protected works published without the permission of the copyright owners”.
The intent and purpose of the device sellers were also a factor in the Court’s decision. They believed Filmspeler was clearly profiting on the deal and they knew the links would be used for copyright infringements.
Cache the distinction
Included in this decision, the Court decided that the temporary reproduction of a copyright-protected work (such as by streaming), without the OK of the copyright holder, is not acceptable. This essentially threw out the previous distinction between downloading – where the end user actually has the files on their device – and streaming – where the files are just saved momentarily in a memory cache. The equation of downloading with streaming is a common sense move, but it leaves many questions unanswered in terms of end-user liabilities.
After all, if a person can currently get fined in Germany or taken to court in many countries for using torrents to download copyright protected material – why should they not be fined for watching the same material on a streaming site? And what about enforcement. How would the Piracy Police track down consumers visiting unapproved streaming sites? And what happens if a person uses a VPN to encrypt content, hide the addresses visited, and conceal their IP address?
Players are a problem
The media players that have gotten the most attention are set-top boxes paired with smart TVs. The devices – as small as an Amazon Fire Stick – often come with the open-source Kodi platform that gives users a “10 foot UI”, making it the perfect tool to access their own music and movie collections or go to streaming sites for additional media content – without leaving the comfort of a smart TV behind.
The Kodi platform – as it can run on a variety of operating systems – is a problem for the Piracy Police. While the Kodi project or the XBMC Foundation are not promoting it as a way to watch protected content, there are a number of third-party add-ons and devices that do just that. While some companies like Filmspeler did it directly by preinstalling the links in the devices, other people are more subtle about it – as a quick search on YouTube will show.
Welcome to Piracy Wars 3.0
The bigger issue is not the device – it is how it the hardware/software combination is being used to circumvent paywalls and copyright restrictions. The Piracy police think a new war is underway. “If you think of old-fashioned peer-to-peer piracy as 1.0, and then online illegal streaming websites as 2.0, in the audio-visual sector, in particular, we now face challenge number 3.0, which is what I’ll call the challenge of illegal streaming devices,” said Stan McCoy, President and Managing Director of the Motion Picture Association’s EMEA region at a recent conference in Russia.
The MPA position is a result of the easy and open access these streaming devices technology offer. Piracy 1.0 with torrent P2P usually required a computer and hard drive storage while Piracy 2.0 meant that streaming websites could be accessed by laptops and mobile devices,. Now we are on to Piracy 3.0. where devices powered by Kodi could be any of these – Android smartphones, Windows computers, Macs, iPhones, Amazon Fire Sticks, even a Raspberry PI. And the content can be seamlessly played on any TV.
Here come the enforcers
On the heels of the Court ruling, there are already changes in the marketplace. Navi-X, a Kodi service sited in Israel shut down in May after legal pressure. Facebook, Ebay, and Amazon are now set to prohibit the sale of Kodi boxes “fully loaded” with links to streaming sites. There have been police actions against streaming sites. The Swiss NAGRA has plans to zero in on pirate streams that piggyback on the Kodi platform. And even at Kodi, there are plans to add Digital Rights Management (DRM) to the platform.
From the end-users perspective, use of a Kodi to circumvent restrictions on a copyright-protected content is not risk-free. So far, there are no reports of automatic warnings/fines going out to Kodi users – as is the case with Torrent users in Germany – but this could change.
Stay tuned for more information.