Rogers, Bell, Quebecor, win appeal against TVAddons

[HARDY]

OTTAWA – The Federal Court of Appeal ruled late yesterday that a Montreal man was indeed enabling the pirating copyrighted content by making TV shows from Rogers, Bell and Quebecor available online through a website dubbed TVAddons.

A lower court judge had originally sided with TVAddons owner Adam Lackman, but yesterday’s decision overturns that.

The appellants (Bell, Rogers and Quebecor division TVA and Vidéotron) have established “a strong prima facie case of copyright infringement for the purposes of the Anton Piller order sought, and the Judge’s conclusion to the contrary was based on a misapprehension of the case law… and on overriding and palpable errors in construing the facts. Likewise, the Judge erred in dismissing the motion for an interlocutory injunction and in concluding that the orders were not lawfully executed.,” reads the unanimous decision of the three-judge panel written by Justice Yves de Montigny.

“(O)ne cannot conceive of TVAddons as being a mere conduit that does not engage in acts that relate to the content of the communication. The respondent’s website is clearly designed to facilitate access to infringing material and indeed claims to be the original source for the best unofficial Kodi add-ons.”

An Anton Piller order is a court order that grants the right to search premises without prior warning.

The case is part and parcel of the Canadian TV industry’s fight against piracy of its content. The TVAddons site offered an online portal to help seek and locate TV shows for which the sites in question did not own the copyright.

“One such application that can be supplemented with add-ons is the Kodi media player,” reads the decision. In another court proceeding, Bell, Rogers and Quebecor also successfully obtained an injunction against the sale of those boxes in Canada. That case is still pending.

“When used in conjunction with add-ons, the Kodi media player can be used to access and stream multimedia content hosted on the Internet. These add-ons fall into two categories: non-infringing add-ons, which direct users towards legitimate websites, and infringing add-ons, which direct users towards copyrighted content where the user has no authorized access,” explains the decision.

Lackman told the court TVAddons was doing nothing wrong and was just a forum for the exchange of information on Kodi technology and for allowing the developers of Kodi add-ons to reach potential users. He also said “the multimedia content accessed by the use of add-ons is not located on the TVAddons website but needs to be accessed and streamed on the Internet by using the Kodi application” and since the pirated content in question can also be found using Google, he was doing nothing wrong.

The appellants, however, and obviously, disagreed. “While it is a source of both infringing and non-infringing add-ons, the (TVAddons) holds itself out as ‘the best’, ‘most popular’ and ‘all free’ source of such add-ons,” reads the decision summarizing the appellants stance. “Sixteen out of the 22 add-ons of the ‘Featured’ category of the TVAddons website are reproduced in the appellants’ memorandum of fact and law. The appellants’ expert has tested 12 out of the 22 add-ons in that category and concluded that these 12 add-ons were all infringing.

The site also offered a “FreeTelly” application for easier and faster access to legitimate and pirated content and TVAddons also produced and distributed Kodi user guides as well, said the appellants.

Much of the appeal by the trio of companies centred on what they believed was overreach by the lower court judge who was supposed to only concentrate on the Anton Piller order, and that the earlier judge misunderstood much of the evidence before him.

“I agree with the appellants that the Judge misapprehended the evidence and made palpable and overriding errors in his assessment of the strength of the appellants’ case. Nowhere did the appellants actually state that only a tiny proportion of the add-ons found on the respondent’s website are infringing add-ons,” reads yesterday’s decision.

“The Judge also appears to have misunderstood the nature of the respondent’s activities, and to have been swayed by the fact that the actions performed by the appellants’ expert to access infringing material on the TVAddons website were replicated by the respondent using Google. While Google is an indiscriminate search engine that returns results based on relevance, as determined by an algorithm, infringing add-ons target predetermined infringing content in a manner that is user-friendly and reliable.

“These factual errors, in turn, led the Judge to a misinterpretation of the law and of the cases. Pursuant to paragraph 3(1)(f) and section 27 of the Copyright Act, the appellants, as creators and distributors of television programs, have the sole right to communicate these works to the public by telecommunication and to authorize such act. There is clearly a strong prima facie case that the respondent, by hosting and distributing infringing add-ons, is making the appellants’ programs and stations available to the public by telecommunication in a way that allows users to access them from a place and at a time of their choosing, thereby infringing paragraph 2.4(1.1) and section 27 of the Copyright Act.”

For the entire decision, click here.