Should Any Device Which Can Be Used to Infringe IP Be Made Illegal?

As pirate set-top boxes, illegal IPTV services and infringement of live TV broadcasts remain key concerns for the audiovisual sector, the pressure is on to find more effective anti-piracy solutions.

Speaking with IBC last week, Sheila Cassells, Executive VP at the Audiovisual Anti-Piracy Alliance, warned that entertainment companies need to be very concerned about “any technological development” which can be used to access pirated content.

From the VCR to the iPhone, from Google Glass to today’s AI, being “very concerned” about new technology is the default position for major rightsholders and, in their position, many might feel the same. However, the focus of the conversation was on certain devices, referred to in the interview as “ISDs, Firesticks and Android apps” and their various abilities to facilitate piracy. What’s AAPA’s position there?

“At a basic level – and common to all the technical devices mentioned – AAPA would like to see the production, marketing and distribution of any device which can be used to infringe IP made illegal” – Sheila Cassells.

Careful What You Wish For

Given the vast experience of Cassells and the collective knowledge of AAPA’s members including Premier League, Sky, beIN, Canal+, and DAZN, we can assume that the statement above isn’t actually AAPA’s position, at least when taken literally. Nevertheless, it does raise some interesting questions.

Like many other people who spend too much time in front of a computer, the desk in front me here represents an Aladdin’s Cave of devices that can be used to infringe intellectual property rights. There’s a monitor that has the ability to show copyrighted images or display unlicensed movies, and is even big enough to be seen outside and generate liability for an unlicensed public performance.

There’s a vast collection of USB drives in various shapes and sizes, but only one where i’m 100% sure of the contents. In any event there must be a few terabytes of storage capacity, and all of it can be used to infringe IP rights; movies, TV shows, software, eBooks – literally nothing is safe.

As for the mobile phone, it’s an infringement machine. It has the ability to record movies in cinemas, store copies for retrieval, and then distribute them on the internet. No song is safe either; right out of the box it was able to infringe copyrights on every track ever made, in the entire history of music.

Can’t Ban All of the Things, All of the Time

The sobering truth is every tech gadget on the desk and most others in the rest of the house can be used to infringe intellectual property rights. Even the internet connection (or perhaps mostly the internet connection) can be used to infringe intellectual property rights, but it doesn’t necessarily follow that will be the use case.

So, after making a fairly basic but sensible case that there’s zero chance of making the production, marketing and distribution of ANY device which CAN be used to infringe IP made illegal, what does AAPA actually mean, and how can the problem be tackled?

In respect of the devices mentioned above (all set-top devices), Cassells references a piece of EU legislation known as the Conditional Access Directive. It dates back to 1998 and was crafted to protect TV platforms that provide content on a conditional basis, i.e customers get access to content on the condition they pay.

Complex Legislation, Boiled Down to Basics

The directive requires EU member states to prohibit an illicit device “which enables or facilitates without authority the circumvention of any technological measures designed to protect the remuneration of a legally provided service.” The directive also prohibits “all forms of advertising, direct marketing, sponsorship, sales promotion and public relations promoting such products and services.”

As is often the case in intellectual property matters, nearly everything here can be boiled down to one of the most important ingredients: intent.

If a device is designed to infringe IP rights, marketed to infringe IP rights, and infringes IP rights when in use, trying to claim the device is a neutral technology after the fact is unlikely to be successful.

Since Firesticks were mentioned, it’s clear they are not infringing by design, they aren’t marketed as such, nor do they infringe in any pre-determined way. As a result they are not illegal and cannot be described as such. However, they are absolutely capable of infringing IP rights so if some kind of middle man intervenes with software or other modifications designed to infringe IP rights, now the device is illegal, regardless of the intent of the original manufacturer.

Illegal Devices Are Already Illegal

If at this point we circle back to the beginning, there are obvious bright lines between ostensibly similar products when one is intended to infringe and the other is not.

The Filmspeler case in the Netherlands established illegality of devices when supplied configured to infringe so, logically, “the production, marketing and distribution of any device which can be used to infringe IP” is already illegal in the EU.

Cassells says that the sector is facing particular challenges tackling devices made in China because taking legal action there isn’t easy. The nature of these devices isn’t clear but if they’re designed, marketed or sold to infringe IP, the problem isn’t rendering them illegal.

In conclusion, this doesn’t sound like a problem in need of a new law. It sounds more like an enforcement issue, most likely preventing devices like these entering the EU, being distributed in the EU, and then sold in EU member states. Perhaps the only solution is to remove the incentive to buy them.