EU court details tech, profit infringement perils

Copyright violations can occur too readily and for makers’ improper advantage when razzle-dazzle TV tools make it too easy to access protected content—with, and without rights owners’ OK, court warns

The sale of multimedia players that permit users to effortlessly stream illegal content to a television screen can be the kind “communication to the public” that is illegal under the European Union’s Copyright Directive, the Court of Justice recently decided.

The ruling by the EU’s high judicial body in Luxembourg could be key as technology continues its unchecked advance.

The case arose when Stichting BRIEN,  a Dutch anti-piracy group, filed legal action against Jack Wullems, the creator of the multimedia device known as Filmspeler. Wullems installed third-party add-ons to his creation to permit customers easy access to protected works on streaming websites operated by third-parties. Some of these sites allow access to digital content—both with and without copyright holders’ permission.

The EU high court characterized the Filmspeler as akin to “a pirate … Apple TV,” and noted that Wullems had advertised the device as such. Those promotions played a  large part in how the court ruled because it helped show that Wullems aimed strictly to profit from the device, which many customers had purchased. But how did this case prove to be digital double-Dutch in the Netherlands and across the Continent?

Playboy case shapes court findings

The EU high court has struggled recently with a number of cases seeking a better definition of what constitutes “communication to the public” of copyrighted material, a key component in the EU of infringement. The Court of Justice relied on its “Playboy” decision last year, in which judges blocked a Dutch website from linking to images posted without the iconic magazine’s permission. The Playboy ruling—where judges said that profit motives must be a consideration in illicit action—clearly shaped the court’s ruling in BRIEN vs. Wullems, in which judges effectively decided that the linking to infringing material itself amounts to infringement.

To be sure, EU and American copyright laws can be dissimilar, especially on the issue of determining infringement liability. Under EU law, the Court of Justice did not consider secondary liability as might occur under copyright laws in the United States. The European court, instead,  examined the “communication to the public” liability, finding it to be direct infringement.

Under the Europeans’ Article 3(1) of Directive 2001/29, authors have the exclusive right to authorize or prohibit any communication to the public of their works, including the making available of materials in any such way that the public may access them from a place and at a time individually chosen by them.  The EU high court noted that it has “already held that the availability, on a website, of clickable links to protected works published without any access restrictions on another website, offers users of the first direct website access to those work.”

The court concluded that Wullems fully understood his actions and their consequences while still choosing to upload add-ons to Filmspeler. He encouraged users not only to buy his device so he could profit but also gave them access to protected works, providing them with hyperlinks to stream content directly from websites onto their TV screens. The court said it had no choice but to conclude under Article 3(1) of Directive 2001/29, that Filmspeler provided a “communication to the public” and is liable for infringement. The court further found it infringed on reproduction rights, too, as content streaming no longer is an infringement defense; it, instead, has become an infringement with this ruling.

Could courts find similarly under American law? Secondary liability, in the United States, can occur with “contributory infringement,” when “one with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” The well-known, 2005 Grokster case  developed another section of secondary liability, the area of inducement. It can occur when a party takes affirmative steps to foster infringement by others. In Grokster, the court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps, is liable for the resulting acts of infringement by third parties.”