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Pirate devices': Edmonton TV company seeks injunction blocking Best Buy, other retailers from selling streaming boxes

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An Edmonton-based television provider is seeking a court injunction to prevent four major retailers from selling what it calls “pirate devices” that allow users to illegally access copyrighted TV shows and movies.

Edmonton Court of Queen’s Bench Justice Michael Lema is hearing an application this week from Allarco Entertainment, a cable, satellite and streaming company that operates the Super Channel network.

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If the injunction is successful, Best Buy, London Drugs, Canada Computers and Electronics and Staples would be barred from selling devices such as Android TV boxes that can be programmed to stream copyrighted content for free.

“(The stores’) staff and management advise, educate, encourage, induce, enable, coach or direct their customers to purchase the devices so that they can steal the plaintiff’s programming that they should pay for,” Super Channel claims in a lawsuit filed in 2019.

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“This stealing has to stop and the four stores have to stop this,” said Super Channel lawyer Bill McKenzie. “I don’t want the public, my grandchildren, to be taught to steal by big stores.”

Lawyers for the four companies deny any wrongdoing.

“What the defendants sell is what’s specifically blessed by the Federal Court in two cases,” said Jonathan Colombo, lawyer for Best Buy. “The defendants do not configure or modify in any way the boxes that they sell.”

Lawsuit seeks to add purchasers as defendants

Super Channel argues the four stores are engaged in a conspiracy that breaches the Trademarks Act, the Copyright Act, the Radiocommunication Act and section 408 of the Criminal Code of Canada.

Allarco CEO Don McDonald said the impact of the boxes on the Canadian broadcast industry has been “devastating.”

His company only considers some boxes “pirate devices,” singling out Roku and Apple TV as examples of “safe” devices.

A Roku 3 streaming box. Postmedia Wire

But with programming or add-ons, some streaming devices are capable of circumventing protections that control access to Super Channel and other copyrighted content, he said.

As part of the lawsuit, Super Channel conducted an undercover camera surveillance operation at all four stores. In a video played in court, a Best Buy employee pitching an Android box says the device can be configured to stream free TV and movies.

“It’s not illegal, it’s just not perfectly legal,” the employee said.

In addition to seeking $50 million in damages from the companies, Super Channel is seeking to add customers who purchased the devices to the lawsuit as defendants.

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At trial, Super Channel hopes to receive sales records from the companies to identify people who have purchased the devices.

“The (stores) know the identity and co-ordinates of their customers who have purchased the pirate devices and received advice how to use them to steal programming,” Super Channel’s lawsuit states. “A full list of those customers will be obtained via discovery and they will be added as defendants.”

McDonald alleged some devices can contain dangerous malware, and that they are seeking to add the customers to the suit “to get the word out.”

“Quite frankly we just want them to throw out the devices, or return (them),” he said.

‘Not some bootleg’

Colombo said the defendants “strongly object” to the term “pirate devices.” He said the plaintiff is misrepresenting the hardware.

Among the apps Super Channel takes issue with is Kodi, a popular media player that has existed for nearly 20 years, he said.

“It’s available from the Google Play Store,” Colombo said of Kodi. “This is not some bootleg application. This is a legitimate application.”

“The allegation by Allarco is … if the device could have Kodi on it, it’s becoming a pirate device, and that raises a hornet’s nest of issues,” he said, noting Kodi can easily be installed on a personal computer.

“If that’s the case, is a computer a pirate device?”

He added that third-parties have created Kodi add-ons to “access works that you probably shouldn’t be accessing.”

However, “none of those add-ons are part of the devices that have been sold by the defendants.”

In its statement of defence, London Drugs called the lawsuit “frivolous and vexatious,” and said the undercover investigation was “clearly intended to entrap” its employees.

“The plaintiff appears to seek a remedy for essentially any device that connects to the Internet and can be modified by consumers,” it states.

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