CJEU rules on sale of multimedia players with add-ons to illegal streaming websites

by Hogan Lovells
Contact

Hogan Lovells

There is no end in sight regarding CJEU decisions on the meaning of “communication to the public“. On 26 April 2017, the European Court of Justice (CJEU) ruled (C-527/15Filmspeler) that the sale of a multimedia player with pre-installed add-ons that contained links to illegal streaming websites constitutes a copyright infringement. At the same time, the court clarified that the exemption for acts of temporary reproduction under Article 5(1) of the InfoSoc Directive 2001/29 did not apply.

The Case

The case was referred to the CJEU by a Netherlands district court. It focuses on the question of whether the sale of the multimedia player named “filmspeler” infringes copyright or not. The player, sold by the defendant creates a connection between a TV screen and audio-visual data such as online videos using a user-friendly interface. Additionally, the defendant installed several add-ons that – after a simple click – retrieve content from streaming websites and play the content on the multimedia player. Some of the content provided by the websites had been uploaded without the right holders consent. The defendant used this feature to advertise the product and promised easy and free access to illegally uploaded works.The Dutch foundation Stichting Brein, which protects the interests of copyright holders, sued the defendant and argued that the sale of the “filmspeler” would constitute a “communication to the public” in the sense of Art. 3 (1) of the InfoSoc Directive. The defendant denies this interpretation and additionally argues that the reproduction produced while streaming is covered by the exception for temporary copies according to Art. 5 (1) of the InfoSoc Directive.

The reviewing court, the Rechtbank Midden-Nederland, had doubts about the meaning of the EU provisions and therefore submitted in total four questions regarding their interpretation to the CJEU.

The Decision

First, the CJEU addresses whether the sale of the multimedia player with the pre-installed add-ons constitutes a “communication to the public“. In line with its previous decisions the Court emphasizes the need for a broad interpretation of the term, as the goal of the directive is to establish a high level of protection for the copyright owners.

The core finding of the judgement is probably set out in recitals 41 and 42. Here, the judges explain why they deem that the sale of the “filmspeler” including the pre-installed add-ons goes beyond the “mere” provision of physical facilities for enabling or making a communication. Such provision is and shall remain outside the scope of Art. 3 (1) of the InfoSoc Directive. However, in this specific case, the judges emphasize that the defendant installed the add-ons in full knowledge that this would enable users to stream illegally uploaded content that they would have probably not found without the “filmspeler”.

The Court also refers to its decisions regarding hyperlinking in the Svensson and GS Media cases. According to the decision in Svensson, the act of providing a hyperlink on a website constitutes a “communication to the public” if the content was made available to a different audience via such a link, e.g. the content was originally behind a paywall. According to the decision in GS Media, hyperlinking to content that was uploaded without the consent of the copyright owner constitutes a “communication to the public” if the person providing the links intervenes to give access to a work and he knew or should have known about the lack of consent.

The CJEU followed the Advocate General in his opinion that there is no difference between providing a hyperlink on a website and installing add-ons containing links on a mediaplayer. The defendant intervened by enabling a direct link between the websites broadcasting illegal content and the purchasers of the media player. Since the defendant advertised his product by highlighting the special feature that allows streaming of illegal content, the Court decides that there was knowledge of the illegal nature of the content. Further it was apparent that the media player was sold as a commercial activity. The Court therefore decides there was a “communication to the public“.

In the second part of the decision, the question was whether the defendant can rely on the exception set out in Art. 5 (1) of the InfoSoc Directive for temporary reproduction. There are five cumulative elements that are required in order for a copy to be covered by the exception:

(1) the act must be temporary,

(2) it must be transient or incidental,

(3) it must be an integral and technical part of a technological process,

(4) the sole purpose of that process must be to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and

(5) that act should not have any independent economic significance.

The CJEU emphasizes in this context that the provision should be interpreted narrowly and that it should only apply in certain special cases. Here, the court finds that the temporary reproduction on the multimedia player affects the normal exploitation of the works and causes unreasonable prejudice to the legitimate interests of the copyright holders and therefore the exemption did not apply.

Comment

The decision clearly widens and shifts the understanding of what constitutes a “communication to the public” into the direction of measures that appear rather preparatory. Right holders in particular will appreciate this development. Still, it seems to be a tricky question where to draw the line between mere provision of physical facilities for enabling communication, and direct communication to the public itself. In the present case, the underlying facts formed a quite remarkable situation, particularly when taking into account that the defendant advertised his product with a clear encouragement to break the law. Against this background, the outcome seems to be “right”. However, one may question whether the reasoning behind this decision can apply to other situations. At least, there must remain room for provision of physical facilities outside the scope of Art. 3 (1) of the InfoSoc Directive.

We expect to see further litigation in this area as right holders continue to test the boundaries of the right to “communicate to the public” and the next CJEU decision regarding “The Pirate Bay” website (C- 610/15Ziggo) and the meaning of  “communication to the public” is just around the corner.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hogan Lovells | Attorney Advertising

Written by:

Hogan Lovells
Contact
more
less

Hogan Lovells on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.