ECJ Kodi ruling muddies the waters still further

A new ruling from the European Court of Justice (ECJ) has, possibly, changed the legal status of Kodi within the European Union.

To be clear up front, Kodi itself is, and has always been, 100% legal to download and use. However, some of the add-ons that can be used with Kodi enable users to stream copyrighted online content for free.

The question of whether this is legal or illegal is rather more open for debate. Up until now, European Law appeared to suggest that it perceived a difference between streaming copyrighted content and downloading it.

The difference between streaming and downloading

Article 5 of Directive 2001/29/EC has been interpreted as meaning that streaming is legal because the data is only present on a user’s device for a short period of time.

This has meant that there has never been an attempt to prosecute anyone for merely streaming content through add-ons downloaded off their own back.  Some people have been successfully prosecuted for selling Kodi boxes with add-ons that would enable access to copyrighted content already installed (so-called pre-loaded Kodi boxes), but the ECJ has never explicitly ruled on that itself.

But all that has changed following this latest judgement.

The case in question once again relates to the selling of pre-loaded Kodi boxes. A Dutch man, referred to in the court paper as Mr. Wullems was accused of selling these boxes in the Netherlands.

The court ruled that selling boxes pre-loaded with software that would facilitate the streaming of copyrighted content was indeed illegal.

Crucially, this is the first time that the ECJ has expressly ruled that selling boxes for the purposes of streaming copyrighted content is illegal. Some commentators have looked at this judgement and suggested that it now puts the streaming of copyrighted content on a par with downloading it, at least in the eyes of the ECJ.

A matter of interpretation

As with all legal matters, there are of course different ways of interpreting the ruling. Prosecutions for the selling of pre-loaded boxes have succeeded in EU member states before, including the UK, where one man, Malcolm Mayes,  was recently fined £250,000 for the offence.

The Premier League has also been going after illegal streams of its matches through Kodi. Their focus has been on those providing the streams, and they recently secured a court order to require the UKs main ISPs to block any illegal streams that are identified.

But there is still yet to be a successful prosecution of an individual for downloading these add-ons themselves and then streaming copyrighted content for their own personal use. Some have argued that this ruling might open up that possibility.

But although the court has ruled on this one case, the core law behind the ruling has not changed, and this still clearly differentiates between the streaming and downloading of content. This not only opens up the possibility that Mr. Wullems might appeal this ruling but also suggests that any prosecutions of individuals are likely to fail until this law is changed.

VPN use essential

But there is obviously a greater risk of users being prosecuted for using Kodi and its add-ons to stream illegal content than there was. This means that ensuring you are the right security and privacy tools whilst using Kodi remains absolutely essential.

No one should be using Kodi, either for the streaming of legal or illegal content, without using a VPN. As a piece of open source software, Kodi is not always secure, and using a VPN will help to protect yourself from some of the security risks it poses.

But a good VPN, such as IPVanish or ExpressVPN will also hide your identity whilst using Kodi, which means that should you be watching something that is in breach of copyright, it is much harder for law enforcement agencies and lawyers to pin this action on you.

It is a simple step, but if you are a keen user of Kodi, it is one of even more fundamental importance in the light of this ECJ ruling.

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