STOP illegal devices that encourage copyright infringement!

The fight against audiovisual piracy

While pirate set-top boxes, illegal IPTV services and live broadcast infringement remain major concerns for the audiovisual sector, the pressure is on to find more effective anti-piracy solutions.

In an interview with IBC last week, Sheila Cassells, executive vice-president of the Audiovisual Anti-Piracy Alliance, warned entertainment companies to be wary of "any technological development" that could be used to access pirated content.

From the VCR to the iPhone, from Google Glass to today's AI, being "very concerned" about new technologies is the default position of major rights holders, and in their position, many could do the same. However, the conversation turned to certain devices, referred to in the interview as "ISDs, Firesticks and Android apps", and their various abilities to facilitate piracy. What is AAPA's position on this?

"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 that can be used to infringe intellectual property made illegal" - Sheila Cassells.

Be careful what you wish for

Given Cassells' considerable experience and the collective knowledge of AAPA members, including the Premier League, Sky, beIN, Canal+ and DAZN, we can assume that the above statement doesn't really represent AAPA's position, at least if taken literally. Nevertheless, it raises some interesting questions.

Like many other people who spend too much time in front of a computer, the desk in front of me represents an Ali Baba's cave of devices that can be used to infringe intellectual property rights. There's a screen that has the ability to display copyrighted images or show unauthorized movies, and is even large enough to be visible from the outside and incur liability for unauthorized public performance.

There's a vast collection of USB flash drives of various shapes and sizes, but only one I'm 100% sure of the contents. Anyway, there must be a few terabytes of storage capacity, and all of it can be used to infringe intellectual property rights; movies, TV shows, software, e-books - literally nothing is safe.

As for the cell phone, it's a copyright-infringement machine. It has the ability to film movies in cinemas, store copies for retrieval, then distribute them over the Internet. No song is safe either; right out of the box, it was capable of infringing copyright on every song ever produced, in the entire history of music.

You can't ban everything all the time

The sobering truth is that 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 especially the Internet connection) can be used to infringe intellectual property rights, but that doesn't necessarily mean it will.

So, having made the fairly basic but sensible argument that it's impossible to make illegal the production, marketing and distribution of ANY device that CAN be used to infringe intellectual property rights, what does the AAPA really mean, and how can we solve the problem?

With regard to the devices mentioned above (all set-top boxes), Cassells refers to EU legislation known as the Conditional Access Directive. It dates back to 1998 and was drawn up to protect TV platforms that provide content on a conditional basis, i.e. customers have access to content on condition that they pay for it.

Complex legislation simplified

The directive obliges EU member states to prohibit an illicit device "which permits or facilitates, without authorization, the circumvention of 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 cases, almost everything can be reduced to one of the most important ingredients: intention.

If a device is designed to infringe intellectual property rights, marketed as such and infringes intellectual property rights when in use, claiming after the fact that the device is technology-neutral is unlikely to be successful.

Since the Firesticks have been mentioned, it is clear that they are not designed to infringe intellectual property rights, that they are not marketed as such and that they do not infringe them in any predetermined way. Consequently, they are not illegal and cannot be qualified as such. However, they are quite capable of violating intellectual property rights, so if some kind of intermediary intervenes with software or other modifications designed to violate intellectual property rights, then the device becomes illegal, whatever the intentions of the original manufacturer.

Illegal devices are already illegal

If we go back to the beginning at this point, there are clear dividing lines between ostensibly similar products when one is intended to infringe intellectual property rights and the other is not.

The Filmspeler case in the Netherlands established the illegality of devices when supplied configured to infringe rights, so it makes sense that "the production, marketing and distribution of any device that can be used to infringe intellectual property rights" is already illegal in the EU.

Cassells asserts that the industry faces particular challenges in combating devices manufactured in China, as it is difficult to prosecute in that country. The nature of these devices is unclear, but if they are designed, marketed or sold to infringe intellectual property rights, the problem is not to make them illegal.

In conclusion, this doesn't seem to be a problem requiring a new law. It looks more like an enforcement problem, most likely preventing these devices from 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.