Lawsuits Against Streaming Piracy Growing, but Legal Challenges Abound

With streaming video piracy booming, content companies and allies are continuing a legal assault against pirate services, and some see the number of allies growing to potentially include other parts of the legitimate video streaming ecosystem. The MPAA said it's seeing some preliminary signs the content company litigation strategy is bearing fruit. However, that legal strategy also faces unique challenges compared with past video piracy fights, experts say.

"The liability framework doesn't map easily onto this kind of content delivery architecture," said University of Idaho law professor Annemarie Bridy, saying the aim is likely more to use the combined legal might of major content companies to dissuade pirate operators than to actually prosecute a case, since such suits are often hard to prosecute.

Legitimate businesses throughout the streaming ecosystem -- such as streaming device makers -- are likely going to join content companies to oppose pirate streaming, said Information Technology and Innovation Foundation Center for Data Innovation Director Daniel Castro. That makes mounting legal attacks easier with a bigger coalition, and makes getting government attention to the problem easier, he said.

Over the past four months, content companies have sued the companies behind Kodi streaming media players Dragon Box (see 1801110031) and TickBox (see 1712290026). The U.S. District Court in Manhattan on Thursday issued a permanent injunction (in Pacer) and default $19.8 million judgment against the PubFilm ring of piracy suits in a complaint brought last year by a variety of content companies (see 1703140033). In a statement, MPAA called the PubFilm order "another major step forward in the MPAA’s global effort to protect the legal marketplace for creative content, reduce online piracy, and support a creative economy that employs millions of workers around the world.”

Among MVPDs, Dish Network has been particularly active in litigation against infringing streaming services, launching several copyright infringement complaints in U.S. District Court in the past couple of years against what it alleges are pirate streaming box operations (for example, here and here).

The MPAA and content company anti-piracy coalition the Alliance for Creativity and Entertainment (see 1706130023) target their litigation at "where we can get the highest impact," focusing on the market leaders in streaming piracy and on underlying infrastructure and intermediaries, said Jan van Voorn, MPAA chief-enforcement and operations, Global Content Protection. Hitting such key elements is "a metric for success," he said. "We will bring more cases where we can bring more high impact" for deterrent effect, he said.

Van Voorn said preliminary MPAA data shows actions taken internationally against repositories of illicit content and against Kodi software add-ons leading to that content are causing some declines in consumption of infringing content. "It's still early days to say where this is going," he said.

The plaintiffs likely don't want to see such services "become so normalized that consumers simply expect them to be legally available," said Vanderbilt Law School assistant professor Joseph Fishman. He said the litigation strategy is similar to the one used in the heyday of peer-to-peer filesharing such as in MGM v. Grokster, focusing on the defendants’ active inducement of infringement. That focus allows plaintiffs to sidestep the question of whether the devices are capable of substantial non-infringing uses and emphasizes how the defendants intended their product to be used, rather than how the product could be used, he said.

About 6 percent of North American households have a Kodi box configured to access unlicensed files and streams, Sandvine said. The most-recent Office of the U.S. Trade Representative notorious markets report said government and stakeholders should cooperate more closely to tackle streaming piracy issues internationally (see 1801120034).

Streaming piracy's copyright issues are more complicated than pirated downloads, said Bridy, who is also a Stanford University Center for Internet and Society affiliate scholar. The inducement to infringe secondary liability claims against services rests on the direct infringement by end users, but the users of such streaming services aren't themselves infringers since it's not a copyright violation to receive a stream, she said. Meanwhile, one of the chief problems is software "add-ons" from distributors that often operate beyond the jurisdiction of U.S. courts, she said. Indexing sites for add-ons are potentially contributory infringers since they make available links to infringing material, but in the U.S. those index operators potentially are shielded by Digital Millennium Copyright Act safe harbor protections as long as they comply with takedown notices, she said.

It also isn't necessarily illegal to distribute the pirate service streaming boxes, Bridy said. Distribution alone of devices that can be used to infringe isn't the basis for liability unless the box makers have knowledge of direct infringement and are making contributions to direct infringement, she said. That knowledge element "is tricky," she said.

Kodi open-source software itself is perfectly legal, with pirate operators often shipping either streaming media boxes preloaded with software that allows accessing pirated content or not loaded but with instructional material on how to download that software, Bridy said.

That users aren't legally liable for viewing actually helps in fighting such streaming piracy, since the number of bad actors is smaller, making it easier to target who is monetizing and benefiting from such services, Castro said. And in terms of optics, it's easier to go after an offending company than individuals, he said.

The content companies and allies aren't likely to seek copyright law changes that would make end users legally culpable, since that enforcement route likely wouldn't be cost effective, Castro said. He said it's more likely they would pursue business partnerships that would have ISPs identifying customers that are heavy streamers of such content and then sending notices to those customers.

Sandvine said when Kodi add-on providers get taken down, infringing traffic goes down, but only temporarily, with another service offering similar service going up within a few days.

With streaming piracy being a "multi-headed hydra" of a problem, addressing it has to involve a multipronged legal attack on the box distributors, the software makers and the file hosters, Sandvine told us. It said legitimate service providers like Dropbox and Google Drive are "doing the best they can" to help in disrupting the piracy infrastructure, but "it's a giant game of cat and mouse."