Brain forces couple through court to stop selling streaming cabinets
A couple who placed advertisements on Marktplaats for media players with links to protected content have been forced to stop offering the players via an ex-parte injunction. A settlement has been reached and a penalty has been established.
The couple has reached a settlement of 10,000 euros with Brein. The copyright foundation forces them through an ex-parte order to remove advertisements from the Marktplaats website on pain of a penalty of 2000 euros per player with a maximum of 50,000 euros. The providers have also relinquished the media players they have in stock.
According to Brein, the couple sold ‘TV boxes’ with pre-installed software containing references to films and TV series from unauthorized sources, for which the couple advertised specifically on Marktplaats. Brein had Marktplaats removed a number of advertisements, but the couple continued to sell the players. The players were also sold by mail order and cost 50 euros.
In April, the European Court of Justice ruled in the case between Brein and the Film player company. In it, the Court states that the sale of a media player with links to protected content is a ‘communication to the public’ and can therefore infringe the copyrights of the rightholders. On the basis of this ruling, Brein requested the court to issue the present ex-parte injunction.
UvA professor of information law Bernt Hugenholtz was not happy with the European verdict pronounced in April. “The concept of a communication to the public has been stretched by the Court to include the sale of such media players. That can have all kinds of consequences, for example for ISPs and search engines.” Hugenholtz argues that this issue could have been better solved outside copyright, for example on the basis of tort and secondary liability.
In case of conflicts in the field of intellectual property, an ex-parte injunction can be requested from the court. In this prohibition, no hearing takes place and the opposing party is not heard. Such an adversarial injunction can only be issued in the event of great urgency and if there is an obvious copyright infringement.
In this case, Brein justifies the use of the agent ex parte, because, according to the foundation, it concerns a large-scale copyright infringement with a view to profit. Brein also states that an ex-parte order is much better complied with than a summons to stop the activities. In addition, Brein believes that there is a risk that the providers will continue to sell via a different name or website. It would then be difficult for Brein to check this; according to Brein, the ex-parte order, together with the penalty, offers increased certainty that the sale will not go through.
In May, Brein claimed that 84 providers of streaming boxes had already stopped selling at that time. About 40 of those providers had stopped, according to Brein, because they saw the mood when the Advocate General advised the EU Court that the media players must be illegal. 6 providers stopped after the final judgment of the EU Court and after Brein’s summons, another 37 stopped.