Intellectual Property

Decisions provide ammunition to broadcasters fighting online piracy

By Staff

Two recent Federal Court decisions are a boost for traditional broadcasters fighting online piracy, Toronto intellectual property litigator Kevin Fisher tells

In one case, a Federal Court judge found the defendant in contempt of court for breaching a previous injunction that prevented him from marketing and selling illicit streaming devices, commonly known as media players.

And in the other — which was related as it was the main source of the software being used on the illicit streaming devices — the Federal Court of Appeal reinstated an injunction against the operator of a website allegedly providing the infringing “add-on” software that allows these media players to access copyrighted material.

Fisher, who often acts for the holders of broadcast rights when their copyright is violated online, says both decisions will bolster injunction requests made on behalf of clients against service providers who enable this type of infringement.

“It’s a very positive development to see the courts recognizing the problems faced by broadcasters and signalling that they are prepared to do more to give rights holders the protection they need,” says Fisher, a partner with Gardiner Roberts LLP.

“These decisions will assist us in relation to injunction requests that we bring on behalf of our clients seeking to protect their broadcasts and programming from parties who use these devices and services," he says. "Over the past few years, this has become the predominant method used to pirate live broadcasts, including pay-per-view events."

Both cases involved media boxes, most of which have been loaded with a program known as Kodi that permits these devicess, also referred to as set-top-boxes, to access and stream live television programs as well as on-demand video. The site operated by the defendants in the second case provided numerous “add-on” to the Kodi software that allows the boxes, and other devices loaded with these programs, to access copyright protected material illegally.

“Kodi software is perfectly legal,” says Fisher, who explains that the add-ons offer virtually unlimited access to television shows including copyrighted material. He says they function using pre-programmed links to illegal sites that offer streaming content and on-demand programming, similar to services like Netflix but without paying the rights holders or paying a subscription fee. In addition, the boxes can also come pre-loaded with movies and other content.

In the Federal Court case, the judge found the defendant in contempt after he sold set-top boxes to private investigators hired by a broadcaster in violation of an injunction already in place.

Fisher says the appeal court case was even more encouraging because the standard needed to be met on appeal was a tough one. The defendant in that case allegedly facilitated illegal streaming by promoting software add-ons whereby the broadcasters were able to obtain an injunction known as an Anton Piller order in the first instance. Upon review, the defendants succeeded in convincing a judge that there was no basis to maintain the interlocutory injunction and the plaintiffs had overreached in obtaining and executing the Anton Piller order.

The appeal court strongly disagreed and held that the Anton Piller order was properly made and executed, and should be reinstated.

“The court basically set out that none of the defences he had put forward were valid in relation to his conduct, including his ‘innocent intermediary defence,'” says Fisher, who was not involved in either matter and comments generally.

Despite the success of the broadcasters in these cases, Fisher says intellectual property rights holders chasing infringers operating online face a tough challenge to keep up. He notes that that while there was success in getting the injunction reinstated, it appears that as a result of the gap between the decisions, the website offering the illegal add-ons by the defendants was able to continue and remains in operation under a different URL.

“It’s possible for them to migrate the content to a separate server or another location that is outside of the court’s jurisdiction, perhaps operating offshore,” he says. “Broadcasters will have to come up with further means and strategies to shut them down at the source.”

Fisher says he is also concerned by the increasing popularity of set-top boxes. A recent survey of 100,000 Canadian households revealed around 10 per cent used Kodi software, with around seven per cent using it to access pirated material.

“It’s a really significant problem, and one that’s growing,” Fisher says.

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