Media players that link to unauthorised content may be unlawful

The Advocate General of the EU (AG) has delivered his opinion today in Stichting Brein v Jack Frederik Wullems, acting under the name of Filmspeler C 527/15 that the sale of a multimedia player, where the seller has installed add-ons containing hyperlinks to websites that hold unrestricted and unauthorised access to copyright protected works is unlawful.

The Advocate General of the EU (AG) has delivered his opinion today in Stichting Brein v Jack Frederik Wullems, acting under the name of Filmspeler C‑527/15 that the sale of a multimedia player, where the seller has installed add-ons containing hyperlinks to websites that hold unrestricted and unauthorised access to copyright protected works is unlawful.

The media player

Jack Frederik Wullems offered to the public, through various websites variations of a multimedia player under the name ‘filmspeler’. If the multimedia player is connected to the internet and to a user’s screen (e.g. a TV screen), the user is able to stream the image and sound from a web portal or website. The hardware for the media player can be bought from various suppliers. 

Wullems installed on his devices open source software which made it possible for anyone to open files. He also installed add-ons (separate software files created by third parties and freely available on the internet) which he integrated into the software. Those add-ons contained hyperlinks to streaming websites, controlled by third parties, on which films, television series and (live) sporting events could be enjoyed free of charge, with or without the authorisation of the right holders.

Wullems also advertised his products through promotional slogans such as "never again pay for films, series, sport… (no subscription fees, plug and play) Netflix is now past tense!".

The issues

Stichting Brein (a Dutch anti-piracy foundation) sued Wullems for copyright infringement in the Netherlands, arguing that on the basis of GS Media, through the sale of the filmspeler, Wullems was carrying out a "communication to the public", he selected the add-ons, knew that these unlocked illegal content and did so for profit.

Wullems argued that there was no communication to the public or a "crucial" intervention, because Wullems merely enabled the public to have access to content that could be downloaded freely from other websites.  He tried to rely on the temporary copying defence in the InfoSoc Directive and that there could be a “lawful use” when a temporary reproduction is made through streaming, if the content originates from a third-party website where it is made available without permission.

The Dutch District Court made a reference to the CJEU on these issues.

The AG's opinion

The AG held the view that the sale of a multimedia player such as the filmspeler:

•          constitutes “communication to the public” within the meaning of the InfoSoc Directive; and
•          cannot be covered by the temporary copying defence in the InfoSoc Directive as it does not fall within the definition of “lawful use” and, in any case, does not fulfil the conditions for application of the three step test in Article 5(5) of the InfoSoc Directive. 

Communication to the public

The AG noted a distinction between GS Media and the current case: Filmspeler concerned the sale of a multimedia player containing add-ons with hyperlinks and not the direct posting of hyperlinks on Wullems' website. However, the AG concluded that GS Media still applied to this case and warned against the risk of departing from previous CJEU decisions.

The AG found that the filmspeler was not a mere physical facility but a type of communication to the public of protected works that have previously been uploaded unlawfully to the internet: marketing of the filmspeler went further than the mere sale of a technical accessory and Wullems' intervention was performed deliberately and with full knowledge of the consequences – that anyone could enjoy protected works by clicking on the hyperlink (which was clear from his promotional advertising). Wullems had assisted purchasers of the filmspeler to avoid paying for lawful access to that content (through a subscription or pay-per-view method). Further, his conduct clearly pursued a profit (as he was selling the player).

The AG also found that Wullems' act of communication was to a "new public" because the filmspeler had an undeniable advantage for a significant portion of the public who were not particularly skilled at using the internet to find illegal sites for watching films and televisions series, amongst other digital content free of charge.  

Temporary copies defence

The AG rejected Wullems' argument that there could be a "lawful use". He added that this is because lawfulness "depends on the authorisation of the right holder or his licensee. Excusable ignorance or reasonable lack of knowledge… [by the end user] of the fact that no such authorisation exists could exempt the user from liability", but strictly speaking, it doesn’t mean the "use" isn’t unlawful.  

The AG also noted that, even if the use of Wullems' device was lawful, none of the conditions in the three-step test within Article 5(5) of the InfoSoc Directive would be satisfied. 

Comments

This opinion is beneficial to rightsholders: it construes the concept of "communication to the public" fairly broadly; the sale of a device that facilitates the provision of hyperlinks to unauthorised content could now be unlawful. The CJEU ruling is expected in or around March 2017 – it remains to be seen if the CJEU will follow the AG's opinion.  

 

With thanks to Madeeha Husain Anthony for writing this blog.