Sports lawyers Alex Haffner and Gerald Brent examine the challenged posed by Kodi boxes to sports rights holders.
What's the issue?
Multimedia players which sit atop or alongside your TV, often known as Kodi boxes, have proliferated in recent years. Often, these devices have been sold to consumers as a means of obtaining direct access to protected online content, such as live premium sports streaming, whilst avoiding the subscription fee. Such access, without the consent of the sports’ rights holders of the underlying content, translates to lost revenues in the form of circumvented licence or subscription fees.
What are the potential legal implications?
In April 2017, the Court of Justice of the European Union responded to such illicit activity, ruling that the temporary reproduction of copyright protected work, as obtained by streaming, is not exempt from the copyright regime. As such, there is legal scope in the UK for an action to be brought for copyright infringement against sellers and users of such a device.
A recent prosecution in the UK (last March) against a seller of preloaded Kodi boxes, followed the ruling.
This reform in IP law complements the recent High Court order, awarded to the Premier League for the 2017/2018 season, against Britain’s top four ISPs to block connections to servers that host pirated streams of matches.
Most recently, in the US, the Federal Communications Commission on 25 May 2018 sent a letter to Amazon and eBay requesting they remove listings of Kodi-style boxes. Whilst both companies already actively remove such listings, the FCC wants more action. In addition, there is some evidence in the US that certain ISPs are treating streaming as downloading, as certain users of Kodi-type boxes have reported receiving copyright infringement notices from their ISPs.
Illegal streaming, therefore, as an example of copyright infringement, seems to be increasingly being treated in the same manner as illegal downloading. As such, sports’ rights holders benefit from a growing arsenal of legal means with which to enforce their intellectual property rights against both suppliers and consumers.
Which sports could be particularly affected this summer?
All sports which distribute content via a subscription-based online format, e.g. football, rugby, cricket, motorsport, have suffered lost revenues (subscription fees) where illegal streaming has taken place. Kodi boxes, as a recent example of a hardware-based way of circumventing subscription services, and appealing to less tech-savvy consumers who may not be able to utilise the pure browser-based alternative means of illegal streaming, are responsible for a significant part of these lost revenues.
What can broadcasters do?
- Get the message out, before and during broadcasts, that there is European law that deems it a copyright infringement to use your Kodi device to illegally stream content.
- Where there is a suitable test case, enjoin together and litigate on it, in order to establish precedent in the higher courts (building on the rulings mentioned above) so as to better protect rights against both suppliers and end-users of Kodi boxes.
- Assist consumers, pointing out to them the range and variety of subscription packages or the nearest local venue which pays for access.