A Box Full of Questions: Kodi and Canadian Law

You may have heard of Kodi boxes. You might even have one yourself. They sometimes go by different names – Android TV or Google box. These cheap devices have put the focus on copyright infringement issues. Some users worry if they are inviting trouble by using them.

A Kodi box is similar to Roku, Apple TV or the other popular set-top boxes. They are just inexpensive computers which connect to a TV. They allow you to access streaming media services such as Netflix, YouTube and others. They are easy to use and cheap, often less than a hundred dollars.

Of course, some costs are added later. Netflix, for instance, requires their normal monthly subscription. Other premium services like HBO are similar.

There is a thriving underground market to access these paid services for free. Most of the popular services are retransmitted through private servers that are, for obvious reasons, hard to find. This requires some level of computer savvy to not only find the free services, but play them while hiding from copyright enforcement. The content providers do not like these servers, obviously, but they can deal with relatively small scales of infringement.

Kodi boxes change the game by making it much easier to access these free streams. If you are setting up the box yourself, you still need some computer knowledge, although instructions are easy to find through an internet search. The bigger problem for content providers is that a healthy gray market has arisen. Vendors sell Kodi boxes preinstalled with all the apps needed to access these streams.

Are these illegal? That is a tricky question. It is almost certain that anyone producing the streams which transmit paid services is violating the Canadian Copyright Act. But there are questions. For one thing, those servers are usually outside of Canada, in countries where intellectual property rights are non-existent or unenforced. Content providers do their best to shut them down but that is a problem for them.

The more immediate issue is if I face liability by using a Kodi box which accesses unauthorized material. That is an even more complex problem.

Canada’s copyright law, like most countries’, includes “authorization” as an infringing act. It is not only a breach of copyright to make a copy of something which someone else owns, but it is a breach to authorize that infringement. Authorization has been used to attack many forms of technology in the past. Sony was sued in the United States in the 1980’s with the argument that their popular Betamax video cassette recorders allowed recording of copyrighted materials, and therefore Sony was authorizing an infringement. While Sony won on other grounds, authorization remains a potent tool in copyright law.

Yet there are strong arguments that the current wording of Canada’s Copyright Act is not broad enough to capture a user, or even a seller, of Kodi boxes under the authorization provisions. The reasons behind that interpretation are beyond our discussion here. Suffice it to say there are no Canadian court decisions which go that far.

It is before the courts, though. In 2016 a group of content providers, including Bell and Rogers, obtained an interim injunction against a company selling pre-loaded Kodi boxes. That decision is under appeal, and does not yet deal with some of the underlying issues, but it shows Kodi boxes are in the crosshairs.

It may be years before we get a final pronouncement on the legality of these boxes, including whether users are liable. Some observers have already declared the genie is out of the bottle. Even if this particular court case is successful, it will not stop users from finding their own resources to build a Kodi box. It is not dead-simple but it does not require a computer science degree. And there will undoubtedly be new technologies and ways of evading detection which could make a court ruling obsolete.

We are not saying Kodi boxes are legal or moral. That is a different discussion and content owners have an obvious right to protect their property. At the moment, though, the law is behind the times in defining any clear boundaries. Users could be safe, for now, but nobody can count on a guarantee.

This article was originally published in SaskBusiness magazine and is reprinted with their kind permission.