The Federal Court recently issued a temporary injunction on the sale of pre-loaded TV set-top boxes (known more popularly as KODI boxes) that allegedly encourage or enable copyright infringement. The relatively simple issue of whether an injunction should be granted (currently under appeal) masks the complexity of the underlying facts and legal issues at play. In what follows I discuss these complexities in connection with the two main bases of potential liability: (1) authorizing infringement and (2) enabling infringement.
KODI boxes are a multidimensional technology
The first complexity is the technology itself. These pre-loaded boxes are multidimensional both in their functionality and the kind of content that is accessed through them. The hardware is the set-top box itself. A set-top box per se is little more than a device that converts an older TV set into a “smart” TV that can access content via the web. In other words, it is the hardware that connects the TV screen to the Internet.
KODI is the software that is loaded onto these boxes and through which apps are developed (open source) to access particular content. Standard apps that appear on the KODI software may include Youtube or Netflix apps much like you would see on a smart TV, i.e. you still need an account to access Netflix. So far, none of this is illegal: the technology is both content neutral (the set-top box) or directs the user to a service that he or she must pay for to access or which is free. The Federal Court in fact was careful to distinguish “the Defendants ‘pre-loaded’ set top boxes from those generally found in retail stores, which do not contain any pre-loaded applications, or contain only basic applications…”
The controversy comes when certain apps are added to KODI which facilitate access to copyrighted content on the internet. Some of the popular so-called addons include Pheonix, Genesis and Exodus. Addons typically offer a menu and sub-menus of content, e.g. top 10 movies or a list of news stations (CNN, BBC) which, when a selection is made, connects the viewer to a stream offering the content or, if it is a TV station, a live broadcast. Or you can search for specific TV shows or movies and the addon will offer a number of links that, when you click on one of them, will (usually) start streaming the content.
Critically, these addons perform search and aggregation functions to content that is made available by others. Some of this content is off-copyright or at least may be authorized for broadcast by the copyright holder, e.g. streams that emanate from public broadcasting websites like PBS or CBC. It seems the majority of it, however, is material that is not authorized for performance or broadcast by the copyright holder and thus potentially infringes copyright. It is these addons, which are pre-loaded onto purchased set-top boxes and connect people to copyrighted content made available by others, which are at the center of the legal controversy.
Authorizing Copyright Infringement
To “authorize” someone else to engage in copyright infringement is a distinct cause of action. Under this type of action, one must first establish an underlying copyright that has been infringed. These rights include the transmission of a live broadcast or the rebroadcast of a copyrighted work (e.g. a TV show or movie) over the internet. Addons such as Pheonix perform search functions that seek out and find these streams. As such they are not directly involved in infringing the underlying copyright. However, they may be liable for encouraging– or in legal parlance “authorizing”- these acts of infringement
The mere provision of technology that allows someone to infringe copyright, such as providing internet connectivity or set top box or a photocopier, is not authorizing infringement. These technologies are content neutral, i.e. they can be used for non-copyright infringing purposes, and the law will not impose liability in such cases. The policy behind this rule is that it is not a good idea to interfere with technological innovation unless a provider exercises some control over, or has specific knowledge about, infringing behavior. Under this rule, if the addons did not suggest content but merely operated a passive search function there would be no basis for shutting them down because there is no control or specific knowledge as to how the addons are being operated.
But when an addon makes suggestions and it can be proven that most of these infringe copyright, it is more difficult to claim content-neutrality. Still caution needs to be exercised before extending liability to such functions. For example, there is little that distinguishes auto-fill suggestions on search engines from suggestion / aggregations listed on these addons. Do we want to go down the road of preventing search and aggregation sites from displaying suggested searches because, if accessed, it might result in copyright infringement? If addons are copyright infringing then there is a legitimate concern that search and aggregation software technology will be negatively affected.
Services that Enable Copyright Infringement
The new enabling infringement provision in the Copyright Act prevents a person from offering a “service” via the internet “primarily for the purpose of enabling acts of infringement.” But whether this provision is triggered will depend on two interpretative issues. First, a court will need to be satisfied that an app is a “service” intended to be captured under this provision. While peer to peer bittorent sites were the obvious target, the language and purpose of this section captures activities – like this – that are broader in scope.
A more difficult barrier to cross is whether addons “enable” infringement since the stream has been posted on the internet by a third party. There is a right to copy but not a right of access given to the copyright holder. When a bittorent file is downloaded onto a computer, there is an infringing copy made. In contrast, when one accesses content that is made available by others on the internet (even if uploaded illegally) there is no infringement. What is being enabled through addons is not the infringement (which has already happened through a third party) but access to the content. Thus an addon that connects a viewer to an ex ante act of infringement cannot be considered enabling.
It is far from clear that KODI boxes are copyright infringing under current rules. This determination will likely depend on where courts decide to draw the line on what constitutes authorizing infringement. The larger picture is that much of this technology will move entirely online in the next few years thus becoming more difficult to control. The genie, in other words, is out of the bottle. In a futile effort to try to put it back in, it would be a shame if a decision in this case resulted in a chilling effect on the development of search and aggregation technologies that help us to navigate the prodigious amount of information on the web.