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Hearing European Court in BREIN vs Filmspeler

The European Court (CJEU) heard pleadings from the parties today, as well as the Commission and Spain. The Court examines four pre-judicial questions submitted by the Dutch District Court of Lelystad. The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is ‘plug & play’. This king of pre-programmed player ussually are offered with slogans like ‘never pay again for the newest films and series’ and ‘completely legal, downloading from illegal sources is prohibited but streaming is allowed’. In summary the pre-judicial questions concern whether the seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.

BREIN argues on the basis of the CJEU’s GS Media verdict that the seller is infringing: he selects the add-ons, knows that these unlock illegal content and does so for profit. Filmspeler argues that there no communication the public or a crucial intervention, because the add-ons and websites are freely accessible on the internet, Filmspler only is making things easier. Filmspler’s argument that it only sells hardware was dismissed by the Court: “you also sell software and know what it can do”.
The Commission is not on the side of this kind of trade but believes there are enough means to enforce against it without deeming their behaviour infringing. The Commission refers to the possibility to get an injunction against intermediaries (article 8.3 Enforcement Directive), blocking of access to a site (CJEU’s UPC Wien verdict), prohibition of circumvention of copyright protection technology (article 6 Enforcement Directive) and securing open wifi networks (CJEU’s McFadden verdict). Spain explicitly rejected the Commission’s opinion and argues that it follows from the GS Media ruling that there is infringement: the treader selects the add-ons knowing they are illegal. Spain also argues that streaming from an illegal source is not legitimate use. The Commission’s opinion is that from a user’s perspective streaming is equal to watching and therefor is legitimate. BREIN argues that it follows from the CJEU’s case law that such streaming is infringing, parallel to downloading from an illegal source (CJEU’s ACI Adam verdict).
The hearing was very lively with many questions from the judges and the Advocate General (AG) to the lawyers of the parties and the Commission. for example the question who would be an infringer if the various aspects (uploading content, developing add-ons, installing add-ons on player, selling player) of the offer via the mediaplayer would be performed by four different persons. BREIN argues that the combination of these aspects is leading to infringement. The Commission is of the opinion that the aspects are to be seen as separate intermediaries. 
The AG will take his conclusion on 8 December 2016. The ruling by the Court usually follows around three months later.