The Actors of Illegal Broadcasting System: Liability of Intermediary Actors
Illegal IPTV services range from organised, complex structured businesses to individual experiments. Today, a typical unauthorised IPTV ecosystem includes primary infringers (main providers of the copyrighted content), a list of intermediaries (whether active or passive), and end-users. There may also be coordinators, which provide the necessary information and act as a customer service for the end-user.
Essentially, infringement occurs when an unauthorized content provider acquires a stream legally and makes it available to third parties (whether they are the end-user or intermediaries) by violating the terms of use.
European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.
The content may not originally be available on the internet. In this case, the unauthorized content provider is forced to use “encoding and transcoding services”. These services turn different kinds of streaming formats into HTTP(s) or RTSP protocols, allowing the unlicenced content provider to reach a bigger audience. If the content is already available on the internet, transcoding services will not be needed. However, straightforward delivery through a web server affects the high definition (HD) of the video content. Thus, unlicensed content providers use a “content delivery network” (CDN) to achieve high-quality streaming to attract end-users.[1]
After the desired video quality is achieved, “aggregators” come in place to ensure end-users access the streams. Aggregators put the streams in the form of an “m3u” or “m3u8” file, which determines a title, channel, URL etc. for the stream. As a result, unlicensed content providers can monetize their efforts by selling the URLs of the m3u or m3u8 files to end-users.[2]
Typical intermediaries in the ecosystem include actors which provide space, network, and technology for the direct infringers such as unlicenced content providers, their assistants, or aggregators. Network providers, hosting providers, content technology providers, registrars, registry operators, and payment service providers are the main intermediaries in the IPTV ecosystem. Rights holders can take legal measures against both direct infringers and intermediaries.
The liability of the intermediaries differs, and European courts decide on a case-by-case basis depending on the conditions set out in the e-Commerce Directive.[3] Mainly, there are three categories of liability with regards to intermediaries:
· If an intermediary does not meet the conditions set out by the e-Commerce Directive, it is liable for direct copyright infringement.
· If an intermediary is under no obligation to act upon receiving information regarding the illegal activity, they are not held liable unless required by the court to act.
· Lastly, an intermediary’s liability may depend on its knowledge of the illegal activity. Nonetheless, they are held liable if they have monetary gain due to the illegal stream.[4]
The e-Commerce Directive creates a safe harbour for IPTV intermediaries if their actions fall under the category of “mere conduit” or “caching”. Network suppliers and internet access providers fall under these categories since they have a purely technical role in the IPTV ecosystem.[1] Thus, they are not held liable.
Distribution channels, such as social media platforms, application stores, and online marketplaces are considered hosting providers. They may be shielded from liability if they do not have actual knowledge of the illegal activity, or they act expeditiously to remove access upon receiving information on illegal activity.[2]
Content technology providers, which provide the technical foundation to deliver the illegal streaming, are not liable if they do not have actual knowledge of illegal activity or act expeditiously to remove access upon receiving information on illegal activity.[3]
The registrar allocates domain names to the public. Their responsibility is to verify the registrant’s contact information at the time of the registration and to ensure that contact information remains up to date.[4]
Registry operators allocate second-level domains. They are not held liable if they act as a “mere conduit”.[5]
Legitimate payment service providers have policies against illegal transactions, and they act against websites that illegally use their services. They also inform the authorities and freeze the assets of suspects upon receiving injunctions. However, if unauthorized content providers use cryptocurrencies, it is harder to pursue illegal transactions. Certain payment service providers may be aware that they are specifically preferred to carry out illegal transactions, in which case they may be liable for aiding and abetting.[6]
Rights holders can take civil enforcement measures against intermediaries such as blocking injunctions (blocking end-users’ access to the illegal streaming website), dynamic injunctions (blocking of the future domain names of the infringer to prevent further illegal streaming), live-blocking injunctions (blocking injunctions against illegal streaming websites during the time of the live sporting event), de-indexing injunctions (de-indexing URLs from the search results), disclosure of information (disclosure of the identities of the infringers). Rights holders can also take criminal enforcement measures, yet these measures depend on the member state as there is no harmonization at the European Union level.
In addition to these, illegal content providers may use hardware to make their service available to end-users. In this case, the hardware may be “vanilla” and does not include any illegal content by itself or is sold fully loaded with illegal content. If the device is fully loaded with illegal content, there is a direct infringement by a primary actor. Thus, there is no issue of liability of the intermediary. However, if the device is vanilla, the liability of the intermediary is discussed.
The manufacturers of these vanilla devices may not be held liable if they act as a “mere conduit”. However, in the European Union, manufacturers are under the obligation to comply with EU safety standards so the rights holders may take customs measures if these devices do not conform with the European Union CE standard.[1]
As the technology evolves and IPTV environment grows, it is almost certain that there will be new secondary actors we will encounter in the future.
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[1]European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.[2] Ibid. p. 32.[3] Ibid.[4] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-15.[5] Stichting Brein v Moviestreamer, District Court Midden-Nederland, 27 October 2017 (Netherland)[6] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-13; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 64, November 2019.[7] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 14.[8] Ibid.[9] Registrar Accreditation Agreement 2013 (lastly updated in January 2019), Article 3.[10] European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 44, November 2019.[11] Ibid. p. 45.[12] Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the Harmonisation of the Laws of the Member States Relating to the Making Available on the Market of Radio Equipment and Repealing Directive 1999/5/EC, Article 12-14; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 70, November 2019Illegal IPTV services range from organised, complex structured businesses to individual experiments. Today, a typical unauthorised IPTV ecosystem includes primary infringers (main providers of the copyrighted content), a list of intermediaries (whether active or passive), and end-users. There may also be coordinators, which provide the necessary information and act as a customer service for the end-user.
Essentially, infringement occurs when an unauthorized content provider acquires a stream legally and makes it available to third parties (whether they are the end-user or intermediaries) by violating the terms of use.
European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.
The content may not originally be available on the internet. In this case, the unauthorized content provider is forced to use “encoding and transcoding services”. These services turn different kinds of streaming formats into HTTP(s) or RTSP protocols, allowing the unlicenced content provider to reach a bigger audience. If the content is already available on the internet, transcoding services will not be needed. However, straightforward delivery through a web server affects the high definition (HD) of the video content. Thus, unlicensed content providers use a “content delivery network” (CDN) to achieve high-quality streaming to attract end-users.[1]
After the desired video quality is achieved, “aggregators” come in place to ensure end-users access the streams. Aggregators put the streams in the form of an “m3u” or “m3u8” file, which determines a title, channel, URL etc. for the stream. As a result, unlicensed content providers can monetize their efforts by selling the URLs of the m3u or m3u8 files to end-users.[2]
Typical intermediaries in the ecosystem include actors which provide space, network, and technology for the direct infringers such as unlicenced content providers, their assistants, or aggregators. Network providers, hosting providers, content technology providers, registrars, registry operators, and payment service providers are the main intermediaries in the IPTV ecosystem. Rights holders can take legal measures against both direct infringers and intermediaries.
The liability of the intermediaries differs, and European courts decide on a case-by-case basis depending on the conditions set out in the e-Commerce Directive.[3] Mainly, there are three categories of liability with regards to intermediaries:
· If an intermediary does not meet the conditions set out by the e-Commerce Directive, it is liable for direct copyright infringement.
· If an intermediary is under no obligation to act upon receiving information regarding the illegal activity, they are not held liable unless required by the court to act.
· Lastly, an intermediary’s liability may depend on its knowledge of the illegal activity. Nonetheless, they are held liable if they have monetary gain due to the illegal stream.[4]
The e-Commerce Directive creates a safe harbour for IPTV intermediaries if their actions fall under the category of “mere conduit” or “caching”. Network suppliers and internet access providers fall under these categories since they have a purely technical role in the IPTV ecosystem.[1] Thus, they are not held liable.
Distribution channels, such as social media platforms, application stores, and online marketplaces are considered hosting providers. They may be shielded from liability if they do not have actual knowledge of the illegal activity, or they act expeditiously to remove access upon receiving information on illegal activity.[2]
Content technology providers, which provide the technical foundation to deliver the illegal streaming, are not liable if they do not have actual knowledge of illegal activity or act expeditiously to remove access upon receiving information on illegal activity.[3]
The registrar allocates domain names to the public. Their responsibility is to verify the registrant’s contact information at the time of the registration and to ensure that contact information remains up to date.[4]
Registry operators allocate second-level domains. They are not held liable if they act as a “mere conduit”.[5]
Legitimate payment service providers have policies against illegal transactions, and they act against websites that illegally use their services. They also inform the authorities and freeze the assets of suspects upon receiving injunctions. However, if unauthorized content providers use cryptocurrencies, it is harder to pursue illegal transactions. Certain payment service providers may be aware that they are specifically preferred to carry out illegal transactions, in which case they may be liable for aiding and abetting.[6]
Rights holders can take civil enforcement measures against intermediaries such as blocking injunctions (blocking end-users’ access to the illegal streaming website), dynamic injunctions (blocking of the future domain names of the infringer to prevent further illegal streaming), live-blocking injunctions (blocking injunctions against illegal streaming websites during the time of the live sporting event), de-indexing injunctions (de-indexing URLs from the search results), disclosure of information (disclosure of the identities of the infringers). Rights holders can also take criminal enforcement measures, yet these measures depend on the member state as there is no harmonization at the European Union level.
In addition to these, illegal content providers may use hardware to make their service available to end-users. In this case, the hardware may be “vanilla” and does not include any illegal content by itself or is sold fully loaded with illegal content. If the device is fully loaded with illegal content, there is a direct infringement by a primary actor. Thus, there is no issue of liability of the intermediary. However, if the device is vanilla, the liability of the intermediary is discussed.
The manufacturers of these vanilla devices may not be held liable if they act as a “mere conduit”. However, in the European Union, manufacturers are under the obligation to comply with EU safety standards so the rights holders may take customs measures if these devices do not conform with the European Union CE standard.[1]
As the technology evolves and IPTV environment grows, it is almost certain that there will be new secondary actors we will encounter in the future.
———————————————————————————————
[1]European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.[2] Ibid. p. 32.[3] Ibid.[4] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-15.[5] Stichting Brein v Moviestreamer, District Court Midden-Nederland, 27 October 2017 (Netherland)[6] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-13; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 64, November 2019.[7] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 14.[8] Ibid.[9] Registrar Accreditation Agreement 2013 (lastly updated in January 2019), Article 3.[10] European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 44, November 2019.[11] Ibid. p. 45.[12] Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the Harmonisation of the Laws of the Member States Relating to the Making Available on the Market of Radio Equipment and Repealing Directive 1999/5/EC, Article 12-14; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 70, November 2019The Actors of Illegal Broadcasting System: Liability of Intermediary Actors
Illegal IPTV services range from organised, complex structured businesses to individual experiments. Today, a typical unauthorised IPTV ecosystem includes primary infringers (main providers of the copyrighted content), a list of intermediaries (whether active or passive), and end-users. There may also be coordinators, which provide the necessary information and act as a customer service for the end-user.
Essentially, infringement occurs when an unauthorized content provider acquires a stream legally and makes it available to third parties (whether they are the end-user or intermediaries) by violating the terms of use.
European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.
The content may not originally be available on the internet. In this case, the unauthorized content provider is forced to use “encoding and transcoding services”. These services turn different kinds of streaming formats into HTTP(s) or RTSP protocols, allowing the unlicenced content provider to reach a bigger audience. If the content is already available on the internet, transcoding services will not be needed. However, straightforward delivery through a web server affects the high definition (HD) of the video content. Thus, unlicensed content providers use a “content delivery network” (CDN) to achieve high-quality streaming to attract end-users.[1]
After the desired video quality is achieved, “aggregators” come in place to ensure end-users access the streams. Aggregators put the streams in the form of an “m3u” or “m3u8” file, which determines a title, channel, URL etc. for the stream. As a result, unlicensed content providers can monetize their efforts by selling the URLs of the m3u or m3u8 files to end-users.[2]
Typical intermediaries in the ecosystem include actors which provide space, network, and technology for the direct infringers such as unlicenced content providers, their assistants, or aggregators. Network providers, hosting providers, content technology providers, registrars, registry operators, and payment service providers are the main intermediaries in the IPTV ecosystem. Rights holders can take legal measures against both direct infringers and intermediaries.
The liability of the intermediaries differs, and European courts decide on a case-by-case basis depending on the conditions set out in the e-Commerce Directive.[3] Mainly, there are three categories of liability with regards to intermediaries:
· If an intermediary does not meet the conditions set out by the e-Commerce Directive, it is liable for direct copyright infringement.
· If an intermediary is under no obligation to act upon receiving information regarding the illegal activity, they are not held liable unless required by the court to act.
· Lastly, an intermediary’s liability may depend on its knowledge of the illegal activity. Nonetheless, they are held liable if they have monetary gain due to the illegal stream.[4]
The e-Commerce Directive creates a safe harbour for IPTV intermediaries if their actions fall under the category of “mere conduit” or “caching”. Network suppliers and internet access providers fall under these categories since they have a purely technical role in the IPTV ecosystem.[1] Thus, they are not held liable.
Distribution channels, such as social media platforms, application stores, and online marketplaces are considered hosting providers. They may be shielded from liability if they do not have actual knowledge of the illegal activity, or they act expeditiously to remove access upon receiving information on illegal activity.[2]
Content technology providers, which provide the technical foundation to deliver the illegal streaming, are not liable if they do not have actual knowledge of illegal activity or act expeditiously to remove access upon receiving information on illegal activity.[3]
The registrar allocates domain names to the public. Their responsibility is to verify the registrant’s contact information at the time of the registration and to ensure that contact information remains up to date.[4]
Registry operators allocate second-level domains. They are not held liable if they act as a “mere conduit”.[5]
Legitimate payment service providers have policies against illegal transactions, and they act against websites that illegally use their services. They also inform the authorities and freeze the assets of suspects upon receiving injunctions. However, if unauthorized content providers use cryptocurrencies, it is harder to pursue illegal transactions. Certain payment service providers may be aware that they are specifically preferred to carry out illegal transactions, in which case they may be liable for aiding and abetting.[6]
Rights holders can take civil enforcement measures against intermediaries such as blocking injunctions (blocking end-users’ access to the illegal streaming website), dynamic injunctions (blocking of the future domain names of the infringer to prevent further illegal streaming), live-blocking injunctions (blocking injunctions against illegal streaming websites during the time of the live sporting event), de-indexing injunctions (de-indexing URLs from the search results), disclosure of information (disclosure of the identities of the infringers). Rights holders can also take criminal enforcement measures, yet these measures depend on the member state as there is no harmonization at the European Union level.
In addition to these, illegal content providers may use hardware to make their service available to end-users. In this case, the hardware may be “vanilla” and does not include any illegal content by itself or is sold fully loaded with illegal content. If the device is fully loaded with illegal content, there is a direct infringement by a primary actor. Thus, there is no issue of liability of the intermediary. However, if the device is vanilla, the liability of the intermediary is discussed.
The manufacturers of these vanilla devices may not be held liable if they act as a “mere conduit”. However, in the European Union, manufacturers are under the obligation to comply with EU safety standards so the rights holders may take customs measures if these devices do not conform with the European Union CE standard.[1]
As the technology evolves and IPTV environment grows, it is almost certain that there will be new secondary actors we will encounter in the future.
———————————————————————————————
[1]European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 30, November 2019.[2] Ibid. p. 32.[3] Ibid.[4] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-15.[5] Stichting Brein v Moviestreamer, District Court Midden-Nederland, 27 October 2017 (Netherland)[6] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 12-13; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 64, November 2019.[7] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, Article 14.[8] Ibid.[9] Registrar Accreditation Agreement 2013 (lastly updated in January 2019), Article 3.[10] European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 44, November 2019.[11] Ibid. p. 45.[12] Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the Harmonisation of the Laws of the Member States Relating to the Making Available on the Market of Radio Equipment and Repealing Directive 1999/5/EC, Article 12-14; European Union Intellectual Property Office, Illegal IPTV in the European Union Research on Online Business Models Infringing Intellectual Property Rights Phase 3, p. 70, November 2019