Is streaming pirate video legal? Europe's highest court will take a look

Raspberry Pi at the center of court case

Fresh from tearing up the safe harbor framework, the European Court of Justice (ECJ) will take a look at the complex issue of online video streaming.

A Dutch court has asked the ECJ to review a number of questions over the legality of streaming content in a case in which an anti-piracy group is suing an online store for its sale of media players.

Campaigners Brein (Dutch for "brain") argues that the media players – which come in the form of a Raspberry Pi with open-source Kodi media player installed and, critically, some pre-configured add-ons that make streaming pirated content as simple as clicking a hyperlink – are illegal since they enable the viewing of copyright-infringing content.

The boxes are promoted online as making it extremely easy to access a range of content without having to subscribe. "Never pay for movies, TV series, and sports. Direct views without ads and no subscription fees. Netflix is a thing of the past!" reads one ad. Other ads stress how easy it is: "Everything is plug and play and easy to use. All settings are already optimized."

Currently, under EU law, it is not illegal to hold copies of copyright-infringing content if it is held temporarily. The argument is that streaming is a form of temporary possession.

As such, the court asks the ECJ to consider two main questions:

  • Is it legal for a product to come complete with links to sources of copyright-infringing content?
  • Is it legal to stream copyright-infringing content?

(These are our concise and simplified versions of lengthier questions posed to the ECJ – for the full questions and extensive background, see the official court judgment in Dutch.)

Repercussions

The first question will be a concern for the manufacturers of media players across Europe, and for the owners of such media players. But if the ECJ does find it illegal to pre-install links to pirate sites, it will not be difficult for manufacturers to comply.

The second question, however, could have widespread repercussions on a whole range of companies and applications, including YouTube, Periscope, UStream, Livestream, and any number of other live streaming websites, apps, and services.

The Dutch court asks whether streaming of copyright-infringing content violates the "three step test" – which was established in 1967 and forms the bedrock of European law on exceptions to copyright law.

The key part of that clause is the second step, which says countries can allow the reproduction of copyrighted work "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

If the ECJ decides that streaming does conflict with "normal exploitation," it would likely lead to a wave of legal actions.

There is no timeframe for the ECJ to make a decision, and the court is not obliged to follow the form of questions or even answer them directly. However, the questions will likely spark a legal review of the issue of streamed content that could set a lengthy and expansive legal precedent. ®


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