The issue of pirate set-top boxes, AKA “Kodi Add-ons” or more accurately, “Illicit Streaming Devices” (ISDs) is back in the news. It is not a new issue (I wrote about it almost three years ago, here). In April of this year, Torrent Freak reported that a Canadian company, Infinity TV, charged with selling TV boxes “fully loaded” with add-ons that provide consumers with access to a wide range of pirated content, has agreed to pay several Canadian media companies, including Bell, Rogers and Videotron (all major telcos with content distribution platforms) $5 million in damages to settle the case. In 2016, the plaintiffs had secured an injunction from the Federal Court prohibiting several vendors from selling the pre-loaded boxes. The court allowed the plaintiffs to add more vendors to the lawsuit, which they did, , expanding the list to more than 125 according to Torrent Freak. Canada is not the only jurisdiction where sellers of legitimate boxes bundle (pre-load) them with unauthorized add-ons to give consumers direct access to pirated content, and then advertise the end product as “free TV” devices.
While Torrent Freak has reported on the settlement, it does not appear to have been picked up by the mainstream Canadian media although there was lots of media coverage about earlier court proceedings against other defendants. Other than the Torrent Freak report, the main online coverage that surfaces regarding the settlement is a Reddit feed that discusses the case. Now, I am not much of a fan of anonymous social media platforms because I think that the absence of identification can lead to an absence of responsibility, but the discussions that they promote can help reveal the sort of mind-set and self-delusion that people use to justify what they know to be illegal acts. In this particular case there was a lively discussion instigated by someone arguing that the court settlement sets a dangerous precedent because it legitimizes the concept that producers of legal goods whose products are used for illegal purposes are nonetheless responsible for the consequences. (Here it is important to note that Kodi was not a participant in this suit, and has denounced the promoters of the piracy add-ons. The defendant was selling – among other things — Kodi boxes with add-on software facilitating infringement bundled with it, in effect creating a new product. The product at issue therefore was not a Kodi box but the box turned into an ISD).
Our piracy advocate argued that it is the user of the product, not the manufacturer, who is responsible for the illegal activity. The other party to the conversation tried to point out that while Kodi boxes were legal, when a vendor took a legal box, incorporated add-ons that were solely designed to provide access to pirated content, and then publicly advertised the final product as providing access to “free TV”, this went way beyond the innocent marketing of a legal product that was hijacked by an unscrupulous end-user. The other person disagreed. We don’t outlaw hammers because someone could use them to break windows, he (or she) said. The same logic should apply to sellers of ISDs.
This is a specious argument but one that is often trotted out by apologists for piracy. It’s a bit like saying that “guns (including semi-automatic military assault rifles) don’t kill people; people kill people”. Therefore restricting the sale of guns won’t stop the problem of gun violence, goes the argument. In the same vein, apologists for piracy argue that the provider of the tool that is used to promote and disseminate access to illegal copyright infringing content should accept no responsibility and suffer no consequences – even if their “free TV for life” marketing (sometimes misusing well-known trademarks of copyrighted content) clearly promotes piracy. Instead, blame the users who buy it (who for the most part have been recruited by the vendor’s promise of “free content”). To come back to the hammer example, the correct analogy is that while a hammer is a legal tool, it would be illegal to sell a hammer with a lock-picking device bolted on to it, coming in a package with a list of nearby homes containing valuable jewellery protected by the lock that the hammer is specifically designed to open, all marketed under the rubric of “free jewellery”.
The other argument that our anti-copyright proponent trotted out is that Bell, Rogers and Videotron are all big telcos, for whom no-one has any sympathy anyway. Telcos are like big banks and airline companies. You can always find something to complain about. With respect to the big telcos, there are indeed plenty of complaints, such as those regarding data overage charges (since dealt with by compulsory alert systems), questionable door-to-door sales tactics by some companies (being dealt with) and just general complaints about prices (that’s why consumers have a choice of carriers, although Canadians do pay relatively high cell-phone rates). But none of this justifies one company, (like Infinity TV or the other defendants), profiting by selling devices to consumers that allow these users to steal from the companies – some big, some small — that invest in, create and provide content as part of a legitimate business model.
It is not just in Canada that the issue exists. It is also a big issue in in the US, where major content providers were successful in shutting down ISD provider, Tickbox, and in Asia. Content providers in Asia are particularly vulnerable because of the proliferation of manufacturers of pirate boxes and facilitators of pirate networks operating in China, which seems unable or unwilling to tackle the problem. (Perhaps they think that allowing the manufacture of devices that steal content promotes innovation, an argument some others have advanced—see below) Around the region generally, however, progress is being made in using existing laws to go after ISD providers and distributors, and in bringing in new legislation to target the ISD problem.
In Singapore, there is a new policy statement by the government indicating that they will propose additional legislation to clarify that commercial activities related to ISDs (including selling, importing and servicing) are illegal. Malaysia has indicated that it will propose amendments to copyright legislation to tighten enforcement, and new legislation in Taiwan has amended the copyright law there to clarify the illegality of ISD commercial activities. Also in Singapore there is currently a case proceeding under existing law targeting a seller of ISD devices, and a Singapore court has mandated that Internet Service Providers (ISPs) must block the offshore “authentication servers” that enable the operation of some of the ISD apps. This follows a decision that allows ISPs to follow “site hopping” when the pirate content providers attempted to circumvent the order by changing online location. There seems to be a growing consensus among governments in the Asia region that action is needed to combat the illicit streaming problem.
Given the ongoing global efforts to defend legitimate content, it is timely to recall a blog published a couple of years ago by anti-copyright Canadian blogger Michael Geist. At the time the Canadian telcos were going after the vendors of ISDs, Geist attempted to argue that the court’s actions in granting an injunction stopping the sale of the devices would stifle Canadian innovation. (“Why the Federal Court crackdown on set-top boxes threatens to chill Canadian tech innovation”). He skates out onto the thin ice of arguing that since the device has some potential non-infringing uses, it should not be proscribed, and claims that the court’s decision to issue an injunction, “has the potential to create a Canadian chill over new, disruptive technologies”. To support his argument for “dual use” he uses the example of a laptop (what about a hammer?). However a general purpose laptop is a far cry from a pre-loaded STB designed and marketed to access pirated content. Do I really need to point out the fallacy of this argument again? Arguing that restraint of illegal activities stifles innovation is firmly in line with Mark Zuckerberg’s “move fast and break things” philosophy. We have seen where that has taken us.
It is interesting to note that Dr. Geist is a strong advocate for personal privacy. Presumably those who exploit weaknesses in our data protection systems are also being innovative, but I haven’t seen him recommend that we drop prosecution of hackers because it would slow down innovation. It is only when copyright protection is involved that he has a problem with the courts exercising their role to protect legitimate business and constrain illegal activity.
The settlement of the ISD case in Canada is a further example of the progress that is being made globally in combatting the use of illicit devices designed to steal content from legitimate providers. The pretext that the vendors of devices that have been adapted and marketed to provide access to stolen content are not responsible for the product that they are selling has been increasingly shown to be a threadbare argument that the courts are not willing to buy. This won’t stop “innovative” people from trying to find creative ways around the law, and rights-holders will have to be just as innovative in finding ways to stop them.
© Hugh Stephens 2019. All Rights Reserved.
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