EFF weighs in on Kodi piracy battles worldwide

If enabling copyright theft is enough to be sued, where is the line drawn?

From obscure software to court cases, the legality of Kodi and the add-ons it enables have recently hit the spotlight in the forms of criminal cases and lawsuits.

The software, used to stream content including films and television shows, began as XMBC back in 2012. Kodi streaming technology and add-ons have been included as part of so-called "pre-loaded" or "fully-loaded" Kodi boxes used not only for legal purposes such as organizing media, but now as a means to stream illegal content.

Kodi itself is not at the heart of this kind of streaming. Instead, third-party add-ons can be installed which provide access to everything from geo-locked content to movies still in the theater.

As Kodi became an alternative to torrents or visiting a handful of websites to stream or download current television shows and films, law enforcement and regulators have begun clamping down on the sale of Kodi boxes, and the question of whether or not these devices are legal has come under review.

As noted by the Electronic Frontier Foundation (EFF) there are proposals in the US to prevent the sale of "illegal" media boxes which, at heart, "can be used to access media streams that were not authorized by the copyright holder."

In other words, it appears that the opportunity to stream illegal content through a device, rather than any particular add-on or technology, is at fault. This is a very gray area in which you could also place web browsing itself and simply access to the Internet, torrent software and other services which are wholly legal but could -- in theory -- be used to access copyrighted content.

This murky legal area was brought to light last month in a case involving UK resident Brian Thompson, who was charged with selling devices "designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures."

Thompson sold fully-loaded Kodi boxes but was not involved in any copying or distribution of illegal material himself.

Middlesbrough Council and Trading Standards claim that the sale of these boxes are illegal as they "primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures," as decreed by UK property law, but the law was never designed to fit around the new streaming technologies that Kodi represents.

Thompson decided to plead guilty, and as the first person to be successfully charged based on this kind of IP law in the UK, it will be interesting to see what the penalty will be when he is sentenced later this year.

There are a number of other interesting cases worth being of note. In another case brought against a seller of fully-loaded Kodi boxes in April, the Court of Justice of the European Union said that as the boxes were configured to link to copyrighted works, "the defendant was infringing the copyright holder's exclusive power to control "communication to the public" of a copyright work," as reported by the EFF.

"The finding that the seller had engaged in a "communication to the public" is, to be charitable, a stretch; especially because recital 27 of Europe's Copyright Directive states that "the mere provision of physical facilities for enabling or making a communication does not in itself amount to a communication," the organization says.

Over in Canada, TVAddons has also been embroiled in a lawsuit brought against the add-on repository by Bell, Videotron, Rogers, and TVA.

The majority of add-ons hosted by the company were not illegal or infringing, and in Canada, hosting providers are protected by law, being "exempt from liability when they act strictly as intermediaries in communication, caching and hosting activities."

This did not, however, stop the plaintiffs and representatives from seizing the owner of TVAddons' equipment and putting him through an interrogation in which a judge found that the owner's rights had been breached.

The items and accounts stolen were ordered to be returned, but the confiscation has deeply harmed the operator and the TVAddons community.

"The lawsuit against TVAddons seeks to skirt that important protection by arguing that by merely hosting, distributing and promoting Kodi add-ons, the TVAddons administrator is liable for inducing or authorizing copyright infringements later committed using those add-ons," the EFF says. "This argument, were it to succeed, would create new uncertainty and risk for distributors of any software that could be used to engage in copyright infringement."

Over in the United States, Dish Network has taken on the developer of Kodi add-on ZemTV and TVAddons. Now closed, ZemTV's operators are still named as the object of a copyright infringement case, while TVAddons is being hauled in front of a judge for providing access to the plugin.

As all of these cases show, the legal standing of Kodi and its developers are in an uncertain time worldwide. However, should judges make the wrong call, this could spell disaster not only for valid and legal streaming technologies and innovation but technology communities as a whole.

"These lawsuits by big TV incumbents seem to have a few goals: to expand the scope of secondary copyright infringement yet again, to force major Kodi add-on distributors off of the Internet, and to smear and discourage open source, freely configurable media players by focusing on the few bad actors in that ecosystem," the EFF says. "The courts should reject these expansions of copyright liability, and TV networks should not target neutral platforms and technologies for abusive lawsuits."