EFF Deeplinks Blog
For most of the lifetime of Kodi since its release as XMBC in 2002, it was an obscure piece of free software that geeks used to manage their home media collections. But in the past few years, the sale of pre-configured Kodi boxes, and the availability of a range of plugins providing access to streaming media, has seen the software’s popularity balloon—and made it the latest target of Hollywood’s copyright enforcement juggernaut.
We’ve seen this in the appearance of streaming media boxes as an enforcement priority in the U.S. Trade Representative’s Special 301 Report, in proposals for new legislationtargeting the sale of “illicit” media boxes, and in lawsuits that have been brought on both sides of the Atlantic to address the “problem” that media boxes running Kodi, like any Web browser, can be used to access media streams that were not authorized by the copyright holder. We’ve also seen it in the big TV networks’ vehement, sometimes disingenuous opposition to the U.S. law and regulations that mandate effective competition in the cable set-top box market.
The difficulty facing the titans of TV is that since neither those who sell Kodi boxes, nor those who write or host add-ons for the software, are engaging in any unauthorized copying by doing so, cases targeting these parties have to rely on other legal theories. So far several legal theories have been used; one in Europe against sellers of Kodi boxes, one in Canada against the owner of the popular Kodi add-on repository TVAddons, and two in the United States against TVAddons and a plugin developer.
European Filmspeler Case
In Europe, the case Stichting Brein v Jack Frederik Wullems (Filmspeler) was brought against a seller of Kodi boxes that came pre-installed with third-party plugins that were configured to access copyright-infringing streams. Although the seller was not engaged in any unauthorized reproduction of copyright works himself, the Court of Justice of the European Union ruled in April this year that because the boxes were configured with plugins that linked to copyright-infringing content, the defendant was infringing the copyright holder’s exclusive power to control “communication to the public” of a copyright work.
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.”
As best as we can explain it, the court reasoned that the provision of the pre-configured Kodi boxes was, in practical terms, a necessary step enabling end users to access the copyright-infringing steams, since these streams were not readily accessible other then by use of Kodi configured with a plugin to access them. The judgment built upon an earlier bad decision that outlawed merely hyperlinking to copyright-infringing content if the party who posted the link knew that the content was infringing; and that they would be presumed to have such knowledge if the hyperlink was posted for financial gain.
Canadian TVAddons Case
The second legal theory that has been used against the Kodi community is that helping people get add-ons that can infringe copyright amounts to an inducement or authorization of users’ copyright infringements. This claim has been used to bring complaints and threats against add-on developers, resulting in several of them shutting down, and also forms the basis of a lawsuit against the host of a repository of such add-ons, TVAddons, brought by Canadian telecommunications companies Bell, Videotron, Rogers and TVA.
The lawsuit caused controversy recently when in a shocking abuse of legal process, the plaintiffs executed an Anton Piller order (a form of injunction somewhat like a private search warrant) to raid the home of the TVAddons site administrator, where during a terrifying sixteen hour ordeal he was interrogated by company representatives who threatened to prosecute him. They later seized his personal computer, domain names and social media accounts. A Canadian court subsequently vacated the injunction, ruling that the TV networks’ “true purpose was to destroy the livelihood of the Defendant, deny him the  resources to finance a defense,” and to engage in discovery without “procedural safeguards.” However, the networks appealed, the lawsuit continues, and TVAddons has not recovered its domain names and equipment (it has continued operation at a new domain name).
It is undisputed that the vast majority of the Kodi add-ons hosted at TVAddons at the time of the seizure were not infringing. Although some add-ons facilitate the users’ access to copyright-infringing streams, there is a strong case that no wrong has been committed by TVAddons for merely hosting them online for download. Canadian law, like American law, provides web hosts with a safe harbor making them “exempt from liability when they act strictly as intermediaries in communication, caching and hosting activities.”
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. 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.
American Lawsuit Against ZemTV and TVAddons
In a counterpart to the Canadian case, Dish Network has sued the developer of an add-on called ZemTV for direct infringement of the streaming media sources that can be accessed through that plugin, and TVAddons for contributory and vicarious copyright infringement, seeking awards of statutory damages against both. In this respect, American laws differs somewhat from Canadian law. This week, Dish amended its complaint to name the individuals it alleges to be the operators of ZemTV and TVAddons. While ZemTV’s operators could be liable for infringement if they actually retransmitted broadcast TV channels without permission, the lawsuit’s claims against TVAddons are weak. While the complaint claims that TVAddons’s operator had “actual or constructive knowledge of  infringing activity,” and that he “intentionally induced ZemTV users to display the programs,” the complaint doesn’t say what, if anything, TVAddons did besides providing access to the ZemTV plugin amongst hundreds of other Kodi plugins. That doesn’t add up to contributory infringement (or inducement).
Dish’s attempt to plead vicarious infringement seems to be lacking, as well. Vicarious copyright liability requires that the defendant have the “right and ability to supervise” the conduct of the direct infringer, and benefit financially. Dish claims only that the TVAddons site made ZemTV “available for download.” That’s not enough to show an ability to supervise.
Despite the weakness of its claims, Dish, like the Canadian broadcasters, has ample resources to throw into litigation. Hopefully, TVAddons will have its day in court.
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 courts should reject these expansions of copyright liability, and TV networks should not target neutral platforms and technologies for abusive lawsuits.