The Canadian Bar Association
Intellectual Property

'Free TV' boxes growing concern for broadcasters

The growth of set-top boxes promising free TV to users is quickly becoming a big problem, according to Toronto intellectual property litigator Kevin Fisher.

The boxes, which offer virtually unlimited access to television shows, including copyrighted material, function using pre-programmed links to illegal sites offering streaming content and on-demand programming similar to services like Netflix. In addition, the boxes can also come loaded with movies and other content.

“They are becoming a real problem, and are incredibly prevalent. You can see them offered online, in most free newspapers, and through storefronts. Go to any flea market and you're going to find them being sold in little stalls,” says Fisher, a partner with Basman Smith LLP.

“It is growing fast and, if not addressed, will become as big a problem to legal broadcasters as free music downloading was to the music industry,” he adds.

According to Fisher, the boxes built a following in Canada among expat communities looking for access to programming from back home but unavailable here, including content originating in countries in Eastern Europe, the former Soviet Union and parts of Asia.

“This may be why it has not really been on the radar of the major broadcasters here in Canada, but it is no longer something that just appeals to expats,” he tells AdvocateDaily.com.

The combination of better hardware options and improving streaming quality has helped take the boxes mainstream, and forced bigger players to take notice, Fisher says.

A recent CBC story on the issue suggests customers are in a legal grey zone when watching copyrighted material using set-top boxes, because they are streaming the shows, rather than downloading them, and the Copyright Act doesn't explicitly target streaming, according to experts quoted in the story.  

The act does bar devices whose primary purpose is to enable copyright infringement, but many set-top boxes are also capable of accessing legal content on platforms such as YouTube, creating more wiggle room for users. However, Fisher says the comments of users suggests how they view the primary purpose of the device.

“The reason they're buying the box is to avoid paying for cable or other legal services,” he says. “The distinction between streaming and downloading is a very technical one. Streaming may not technically be downloading, but it is still copying, because a copy has to be created and transmitted to your particular IP address. There's no question that the content is straight out stolen and that users are receiving stolen goods.

“Many of these services have been linked with organized crime, and users should also be concerned that they are working in concert with people who are overcoming technological protection measures in violation of the Copyright Act,” he says.

Ultimately, Fisher says the users of set-top boxes may be insulated from legal repercussions simply because of the disproportionate cost of tracking them down compared with the level of damages that the Copyright Act provides for. However, he says they could indirectly suffer thanks to the efforts of rights’ holders to identify and shut down pirates.

“Access to the illegal service is often short-lived or has constant interruptions in service as access to specific content gets blocked by the real content owner," Fisher says.

“My clients are particularly concerned about the illegal access to live sports programming and we will be doing our part to shut down as many of the service providers and resellers as we can locate," he adds.

In the event they are successful, users should be concerned that rights holders "will seek to gain access to all of the financial data and information about the users and subscribers to these illegal services," Fisher says.

 

 

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