Dutch Court refers questions to the Court of Justice of the European Union (CJEU) regarding pre-programmed media-players

BREIN acts against a trader in pre-programmed media-players
(Filmspeler). The trader installed add-ons on the media-player with
hyperlinks to illegal websites which offer unauthorized movies,
tv-series, sport broadcasts and music. The media-players are recommended
with slogans like “never to the cinema again”, “Netflix is the past”,
“Never pay again”, “Downloading (from illegal source) is illegal but
streaming is not”. BREIN requests a declaratory ruling that the trader
is infringing copyrights by hyperlinking to illegal content and that
streaming of illegal content constitutes a copyright infringement.
The court refers questions to the highest European court. The questions in essence read as follows:
 
With regard to communication to the public (making available):

1.  Does Filmspeler infringe copyrights by selling pre-programmed media-players with hyperlinks to (illegal) websites which contain unauthorized content (movies, series, sport broadcasts and music)?

2.  Is there an essential difference
–   If the copyright protected works have not been previously disclosed to the public or solely behind a paywall?
–  If the add-ons are freely available and the users have the possibility to install the add-ons themselves.
–   If the websites are also directly accessible via internet without the media-players.
 
With regard to streaming from an unlawful source:
 
1. Is the legal requirement of “lawful use” met if a temporary reproduction is made during the streaming of content that is offered illegally on a website?

2. or is this in violation of the three steps test (which requires, amongst other things, that a copyright exception does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author)?
 
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.
Read the judgment here in Dutch.

http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBMNE:2015:7192

An English translation is available upon request.