ECJ to Decide if Streaming is Legal

Douglas Crawford

Douglas Crawford

October 13, 2015

One of the most popular articles on BestVPN is 5 Best VPNs for Popcorn Time, and one question we get asked all the time is whether Popcorn Time is legal in [insert country]. There two main strands to the answer:

  1. Downloading copyrighted content is illegal in most countries. Some exceptions exist (such as in Switzerland for personal use only), and in many places the law is enforced weakly or not at all, but in general, downloading stuff is illegal. Streaming, however, is a much more grey area from a legal point of view, as the viewer does at any time possess a copy of the copyrighted content, and therefore can hardly be accused of “stealing” it*
  2. Popcorn Time uses the BitTorrent protocol, so to an outside observer it looks exactly as if a viewer is downloading content. If caught, a PT user might be able to convince a court that they were streaming and not downloading, but as we have noted, streaming is itself a very grey area…

The European Court of Justice (ECJ) is now set to rule definitely on whether streaming is legal in Europe.

This has come about due to a court in the Netherlands  referring a series of questions to the ECJ, relating to anti-piracy group BREIN’s ongoing case against Filmspeler, a shop that sells “pirate TV boxes” (of the type that has caused police to raid shops in the UK.)

These “pirate TV boxes” are typically Android devices that come preloaded with a copy of the free and open source Kodi (was XBMC) media player software, plus some third party plugins that allow users to readily stream copyrighted material.


It should be noted that this software is freely available for download onto just about any computer-type device, and that “Pirate boxes” make simply make the whole process ridiculously easy.

It does seem, however, that Filmspeer has been somewhat unsubtle with its advertising, using slogans such as “never go to the cinema again”, “Netflix is a thing the past”, “never pay again”, and “downloading (from illegal source) is illegal but streaming is not”.

Some of the questions put to the ECJ relate directly to the legality of pre-loading these boxes with software that permits “piracy”, but an even more important set of questions relate to the deeper issue of whether streaming does in fact constitute piracy at all,

The Court will refer the following questions to the ECJ:

1) Must Article 5 Copyright Directive (Directive 2001/29 / EC) to be interpreted as the absence of “lawful use” within the meaning of paragraph b of that provision where a temporary reproduction is made by a end user to stream a copyrighted work of a third party website to which this copyrighted work without permission of the owner (s) being offered?

(Is it lawful to temporarily reproduce content if it is streamed from a website without the copyright holder’s permission?)

2) If the answer to question 1) is negative, making a temporary reproduction by an end user streaming a copyrighted work on a website that this copyrighted work without permission of the owner (s) is offered, then contrary to the “three-step test” provided for in Article 5 paragraph 5, Copyright Directive (Directive 2001/29 / EC)?

(If not, then how does this violate the EU Copyright Directive’s Berne three-step test, which is used to determine if copyright law has been breached?)”

BREIN has expressed satisfaction over referral of these questions to the ECJ (also referred to as  the CJEU),

BREIN is pleased that more clarity will be given through these fundamental questions who in the current case law of the CJEU stay unanswered. Meanwhile BREIN persists the approach of traders of similar media-players with illegal preprogrammed software.

It is not known how long the ECJ will take to rule on these issues.

*Technically, a streaming viewer will almost certainly have copyrighted content cached on their viewing device, which could in theory be used by lawyers to argue that content has in fact been downloaded.

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