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Court: Kodi streams OK, caching not

13 July 2018

Some time ago, SkyTV took a case to court claiming that preloaded Kodi boxes were illegal and breached copyright.

Well yesterday a district court ruled on that case and although you probably won't be surprised that the court sided with SkyTV, you may be surprised to find out exactly how this decision was arrived at.

The judge in this case ruled "that people who had bought Kodi boxes from Fibre TV were breaking the Copyright Act because copyright-infringing content would be cached on the devices before it was watched".

That's right... the "gotcha" is not that the streaming itself is illegal but that the material is cached before it's passed on to the TV set.

How does that work?

Doesn't our copyright Act allow immunity for cached copies of protected works?

Well it does, and it doesn't.

I have to take my hat off to our law-makers in this case. They were clearly thinking ahead when they devised section 43A of The Copyright Act 1994.

This piece of the act very clearly states:

A reproduction of a work does not infringe copyright in the work if the reproduction

  • (a) is transient or incidental; and
  • (b) is an integral and essential part of a technological process for --
    • (i) making or receiving communication that does not infringe copyright; or
    • (ii) enabling the lawful use of, or lawful dealing in, the work

So you see... if you're legitimately watching a YouTube, Netflix or other stream which contains protected material you have a right to view then the cache on your computer, smartphone, Kodi box or whatever is non-infringing.

However, the moment you start watching a pirated stream or stream a movie without license from the copyright holder, your cache becomes an unlawful and infringing copy.

Cunning eh?

But in that case, isn't your ISP and all the others in the long chain from the source of the stream and your own player also infringing?

Maybe, maybe not.

Section 92E of the Copyright Act 1994 provides a degree of exemption for ISPs (who can't be expected to know if the stuff they're carrying and potentially caching is actually legal or not) but it does include a clause 92.1.b which states:

An Internet service provider does not infringe copyright in a work by caching material if the internet service provider -- complies with any conditions imposed by the copyright owner of the material for access to that material

This is perhaps one area where the Act might need a bit of of a tidy-up. An ISP can not know if a packet of data is protected by copyright and therefore they can't know the terms of that copyright so as to ensure they are compliant.

Naturally, we'd expect the courts to take this into account when examining any prosecution alleging that, by caching illegal material, an ISP was guilty of a breach of the Act. However, as we all know, justice increasingly goes to the party with the biggest wallet so if one of the rich movie studios or music publishers decided to accuse an ISP of violating copyright even though they were packet-agnostic, the Act would seemingly provide no protection for the ISP in such cases.

So am I going to stop using my Kodi box?

Hell no because, as we all know, I only use it to watch YouTube videos anyway.

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