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Media Player ‘add ons’ linking to unauthorised streaming sites is unlawful.

Written by Mark Reed on 27 March 2017

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Stichting Brein v Filmspeler (C-527/15)

Facts

Filmspeler sold Media Players that allowed people to stream content from websites, which were ‘add ons’ that would redirect users to third party sites. Stichting Brein, who are a Dutch anti-piracy organisation, then sued Filmspeler because they found that the sale of the media players was a communication to the public ostensibly being an infringement of copyright.

The case of Nils Svensson v Retriever Sverige (C- 466/12) was applied based on the dictum that hyperlinking to third party content on the internet was not a communication to the public providing the material was freely accessible on another website. However, the Dutch court found this point to not be sufficient criteria to help it reach its decision as to whether it was ‘communication to the public’.  Stichting Brein applied the case of GS Media v Sanoma Media (C-160/5) which held that

“there is a communication to the public when: (i) a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet; or (ii) the link allows users to circumvent the restrictions taken by the website to limit access to its own subscribers (eg, a pay wall). In those circumstances, there is a deliberate intervention without which the user could not have access to the work.”

They claimed that Filmspeler was infringing because they knowingly provided links to these unauthorised sites for their own personal gain. However, Filmspeler argued that a Filmspeler media player was a ‘physical facility’ in that it enabled but was not in itself a communication.

 

Advocate General’s opinion

After deliberation, the AG quite simply stated that the CJEU should be reluctant to depart from previous judgments and he then endorsed the GS Media subjective criteria of knowledge and profit-making for determining liability for primary copyright in cases of hyperlinking to unauthorised content. He also stressed that streaming from payment platforms causes no intellectual property issues in most cases. Instead, he looked at the purpose of the defendant’s scheme when assessing lawfulness. However, when those such as Filmspeler have a clear aim to spread access to unauthorised content, it does cause problems. He said that things change when the link directs users to unauthorised content on the internet.

 

This case highlights that those who have content that is deliberately put on platforms without authorisation, which must be infuriating, can take solace that the law is finally catching up. It shows that these issues are being taken seriously and people who make these sites available must be stopped. We will be watching the development of the law on this issue very closely, so keep an eye out for our findings.

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