The CJEU today handed down its judgment in the eagerly awaited Filmspeler case.The CJEU has followed the opinion of the Advocate General and decided that pre-loading links to pirate websites onto a set-top television box constitutes a communication to the public.The CJEU also said that the temporary copying exception did not apply to copies that might be made in the use of the box because those copies were not a result of a lawful use.
Mr Wullems installed software add-ons onto a set-top box, which can connect to a user's internet and television. Those add-ons contained hyperlinks to pirate websites which, in a user-friendly way, made available infringing films, television series and live sports content. The websites were freely available, though the content in question had not been authorised by rights holders. Mr Wullems branded the set-top box "FilmSpeler" and in advertising the box said (among other statements) "Never again pay for films, series, sport, directly available without advertisements and waiting time. (no subscription fees, plug and play) Netflix is now past tense!". Stiching Brein, the Dutch anti-piracy organisation, brought proceedings in the Netherlands against Mr Wullems, arguing that his actions amounted to communication to the public. The Dutch first instance court referred the case to the CJEU. CJEU Decision - Stichting Brein v Jack Frederick Wullems, also trading under the name Filmspeler (Case C-527/15) The CJEU considered that the two fundamental parts to the communication to the public right were satisfied by Mr Wullems's actions: 1. Act of communication
- Following Svensson, Bestwater and GS Media, provision of a hyperlink to content on a freely accessible website constitutes an act of communication.
- In Filmspeler, the CJEU has decided that pre-loading the software containing the links to pirate sites onto the box was a provision of a hyperlink, and therefore an act of communication.
2. To a public
- Svensson and Bestwater set out that a hyperlink to a freely available website where the content had been authorised by the rights holder does not constitute a communication to the public because there is no "new public" that the rights holder had not considered.
- GS Media nuanced that analysis in relation to content which was not authorised by the rights holder, setting out that it must be analysed whether (1) the linker had knowledge that the content linked to was unauthorised and (2) the financial motive of the linker.
- In Filmspeler, the CJEU has decided that the communication was to a new public. Mr Wullems had knowledge that the content was not authorised by rights holders, and he sold the Filmspeler box with the links already loaded as his business (ie for financial gain).
The communication to the public right has been considered by a great number of CJEU cases in recent years.The judgments have taken an overlapping, inconsistent, and sometimes contradictory approach and the search for an over-arching doctrine continues to elude us. We are left with a complex labyrinth that we have to navigate in order to work out what the law is and where the lines are. It is complex, and it seems that the only truly consistent thread between each case that has been decided by the CJEU is that the outcome is highly fact specific. The following table attempts to distil this body of case law into some sort of logical structure. It attempts to identify patterns to try and help our understanding, though its content is definitely up for debate!
Health warning: this is now out of date after Filmspeler(!).
Filmspeler fits most comfortably in the "linking" line of cases, and the CJEU's approach seems to support that - for the most part. However, since this case concerned the added dimension of links within software loaded onto hardware, the court also drew upon concepts applied in other groups of cases where hardware has been relevant to the analysis.
In trying to demonstrate that Mr Wullems was not merely providing physical facilities for a communication, the CJEU said his actions were the same to that of a hotel that used its central television feed to provide content to all of its guest rooms (rather than paying license fees in respect of each room), as in SGAE v Rafael Hoteles (Case C-306/05) (a "public spaces" case for the purposes of our table). That approach is confusing to us, we do not see that fact pattern as analogous. In that case, the hotel was itself communicating (ie actually transmitting) works to the public through its equipment in its hotel. In Filmspeler, Mr Wullems was not. This is good news for rights holders. Ultimately, the CJEU has taken a holistic approach to analysing Mr Wullems's role. Yet again, the finding of a communication to the public has been decided on the specific facts of the case. The legal analysis is difficult to follow. It seems that the court is gradually expanding the communication to the public right to catch people further and further away from the person actually communicating or transmitting the content. It does not end here, either. The CJEU will shortly be issuing its judgment in the Pirate Bay case, Stichting Brein v Ziggo BV (Case C-610/15), which could expand the analysis further.