CJEU : Piracy configured Media Boxes are illegal

CJEU emblem

7 August 2017 – On the 26th of April, Europe’s highest court, the Court of Justice of the European Union (“CJEU”) issued a long-awaited ruling on the legality of the sale of piracy-configured media players.

The case centred on one man’s business in the Netherlands, although it will undoubtedly have wide reaching implications for all sellers of similar media players. Originally, Stiching Brein, a Dutch anti-Piracy foundation, had instituted proceedings before the District Court of Central Netherlands in an attempt at prohibiting the sale of “Filmspeler” multimedia players, which were being sold by a certain Mr Jack Frederik Wullems. Stiching Brein argued that the players constituted a “communication to the public”, which ran contrary to Dutch copyright law. Wullems in disagreement countered by stating that the content his players offered was already publicly available.

The Dutch court referred the matter to the CJEU for a preliminary ruling, asking specifically whether the sale of such devices, which contained links to pirated content, was legal and if individual users can be held liable for accessing such material.

The CJEU concluded that the media players in question are indeed to be considered a ‘communication to the public’ in line with article 3(1) of the Information Society Directive (2001/29/EC). The CJEU held that Mr Wullems, “had full knowledge of the consequences of his conduct” and was ultimately selling the media players for a profit.

Mr Wullem maintained that the players he sold (which enable users to stream content) fell within the ambit of the exemption of the “reproduction right” provided for in the Directive. For this exemption to apply, the copyrighted material in question must meet the following conditions simultaneously:

  • the act must be temporary;
  • it is transient or incidental;
  • it is an integral and essential part of a technological process;
  • the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or protected subject matter; and
  • that act does not have any independent economic significance.

The Court did not agree and held that the piracy-friendly players are not protected under such exemption since their transmission adversely affects the actual copyright holders, "Acts of temporary reproduction, on a multimedia player, such as that at issue in the main proceedings, of a copyright-protected work obtained by streaming from a website belonging to a third party offering that work without the consent of the copyright holder does not satisfy the conditions set out in those provisions."

The final outcome for Mr Wullem’s business activities is still at the mercy of the Dutch courts since the CJEU’s ruling was a preliminary one.

The ripple effect of the ruling will almost certainly also reach Malta. ‘Kodi’ and ‘Android’ media players that are sold pre-loaded with pirated content have become commonplace in Maltese households and need to be phased out since they are in direct violation of EU copyright legislation.

For those interested, the entire ruling may be read at this link (Full text Judgement).

Please do not hesitate to get in touch with Gonzi & Associates, Advocates for any assistance with your Intellectual Property requirements or with any other legal requirements whatsoever.

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