Illicit Streaming Devices – The Online Pirate’s New Favorite Vessel by Hisham El Mawan
Despite the continued growth of legitimate services for streaming movies and TV shows, a new form of infringement of these copyrighted works has surfaced: illicit streaming devices (ISDs). On January 12, 2018, the United States Trade Representative, the agency responsible for creating and recommending trade policy to the President, released the 2017 Out-of-Cycle Review of Notorious Trade Markets. In this report, the USTR dedicates some discussion to the growing threat that ISDs present to screenwriters, producers, sports leagues, and other content creators within the film and television community.
Probably the most prevalent among ISDs in use today are Kodi boxes. While the Kodi system itself is a legitimate media player, the system is open source – meaning that just about anybody can use the device’s original blueprint to create software that configures Kodi boxes to access illegal streams of films and shows that are available online – and unfortunately, they do. A recent report by Sandvine found that roughly six percent of all households in North America have a Kodi device configured to access unlicensed content.
For a while, the business of making and selling ISDs managed to stay relatively underground, at least in the United States. But recently, Netflix, Amazon, and an armada of Hollywood studios – including Universal, Columbia, Disney, 20th Century Fox, Paramount, and Warner Bros. – have taken notice. In October 2017, they commenced legal action against TickBox TV, alleging that the company has promoted their product as “a tool for the mass infringement of copyrighted motion pictures and television shows.” The same group of plaintiffs brought a similar action against Dragon Media this month, once again asserting intentional inducement of infringement and contributory copyright infringement.
Distributors of ISDs make it easy to stream and download infringing content at the push of a button. Their products work essentially as devices that allow you to watch for free what legitimate streaming services charge you to access, and they advertise it as such. People that sell these media boxes with problematic addons can be sued for copyright infringement under a theory of secondary liability, similar to in the landmark Supreme Court case MGM v. Grokster. For instance, according to the complaint, TickBox TV’s company website displays a headline that asks, “Frustrated with overpriced cable bills?”, and contains alleged customer testimonials such as “I enjoy being able to watch what I want and being able to save a few bucks doesn’t hurt”. Dragon Media’s advertisements are a little less subtle, imploring potential customers to “Get rid of your Premium Channels” and “Stop paying for Netflix and Hulu”. But perhaps those ads might prove helpful to the plaintiffs, since they essentially confirm the two elements needed to satisfy an assertion of secondary infringement: knowledge that infringement is occurring, and contribution to such infringement. Not only are the likes of TickBox and Dragon Media allegedly knowingly giving their consumers the tools for infringement, but they’re also encouraging them to use those tools in that manner.
As indicated by the lawsuits above, the widespread use of ISDs not only infringes upon the copyrights of creators of films and TV shows, but also harms legitimate streaming services, such as Netflix and Hulu, that are licensed to provide content (and increasingly produce their own works). These content producers and distributors have united against this growing threat, but the battle is far from over.
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