Illegal set-top boxes – a multimedia extravaganza post

Audio! Words! Internet cat fights! This post has it all.

So a couple of weeks ago I was contacted by Scott Radley, a radio host at AM 900 CHML, “Hamilton’s News Talk Leader”. He asked me if I would appear on his show to discuss the just-released case from Canada’s Court about Android set-top boxes. I frankly had no idea what the hell he was talking about. But that never stopped me from media-whoring before! So I said yes, went and read some stuff like a maniac, and the result is the interview embedded above. You can listen to it as an intro to the rest of this post, or even listen while you read! I will overload your senses! Before I dive into the case, let me give a shout out to Scott, who was one of the best interviewers I’ve ever dealt with. If the sound quality of my end of the interview was better (my fault, not the radio station’s), I would consider this my media coup de grace.

OK the case! It is called A Whole Bunch of Cable Companies vs. A Whole bunch of Numbered Companies (here’s the PDF). Well obviously it is not called that but I am not writing out all those parties. On one side we have Bell, Vidéotron, Rogers, etc. Interestingly each of those cable companies has two different arms represented – the cable distribution arms and the TV station-owning arms (what the Court calls the “Distribution Plaintiffs” and the “Media Plaintiffs”). That’s important for reasons we’ll see. The numbered companies (and some named companies too, including my favourites – Android Bros Inc. and WatchnSaveNow Inc.) are makers and / or sellers of what the Court describes as:

set-top boxes, electronic devices that can be connected to any standard television set in order to provide additional functionalities to that television, on which they have previously installed and configured a set of applications. This distinguishes the Defendants’ “pre-loaded” set-top boxes from those generally found in retail stores, which do not contain any pre-loaded applications, or contain only basic applications, such that the user must actively seek out and install the applications he or she wishes to use

The boxes run the Android operating system, because Apple would never allow such a thing. The boxes have pre-installed applications like Kodi, Showbox, and various IPTV services. Basically stuff that allow you to get TV content for free (or for a fee in some cases). Cable companies don’t like that! Can’t imagine why.

Before we go any further, I should mention some law stuff. The PDF decision I linked to is what we call in the legal biz an “order for an interlocutory injunction”. That’s a lot of fancy law words! The key word is “interlocutory”. This is an interim thing, something that happens during a case. So the order specifies that:

The motion for an interlocutory injunction order valid until such time as this Court renders a final Judgment on the merits is granted

So this is only the first official word on the case. In fact, one of the Defendants has already appealed this decision (PDF). So they are appealing the interim decision, and then eventually we’ll have a final decision, and then someone will appeal that. So we’ve got a while to go, probably 3 more decisions at least! Let’s hope I am still blogging in 3-4 years when this whole thing is finally resolved.

OK back to the case. And because it is only interlocutory (look at you, you learned a new word!) we won’t spend a lot of time going through the details. Because we’ll have many more details in the three more decisions to come! Also I’m lazy and a long weekend is coming up fast. So remember when I said there were two types of plaintiffs and that was important? It is because they are saying different laws are being broken. The Media Plaintiffs say that the set-top boxes violate the Copyright Act, because only they have the license to broadcast a bunch of copyrighted TV shows in Canada. The Distribution Plaintiffs on the other hand, say that the boxes violate their rights to distribute programming as per the Radiocommunication Act. Both of them say they are losing a shitload of money as a result. So they ask the Court to order the Defendants to stop selling those goddamn boxes already.

More law talk! To get an interlocutory injunction, you have to show a bunch of things. Well, three things. That there is a serious issue to be tried, that if an injunction is not granted the Plaintiffs will suffer irreparable harm, and that the balance of convenience must weigh in the favour of the person requesting the injunction. I barely know what that third one means either. And I used to argue it in court all the time!

There is some really good law talk by the judge as she analyzes whether the three things have been met. But I am not going into mind-numbing detail for this interim thingamajig. Anyway, the Court first says yes, there are some serious issues to be tried. Duh – these boxes were born for copyright infringement! The question of irreparable harm is a good one though. Here is a fascinating bit:

Plaintiffs argue that they will suffer irreparable harm if the injunction is not granted because pre-loaded set-top boxes represent an existential threat to the Plaintiffs’ line of business as piracy is one of the top causes for declining subscriptions for television services in Canada and leads to annual decreases in revenue

Existential threat! Jesus fucking Christ Bell and Rogers you are assholes. The point of irreparable harm is that you must give an interlocutory injunction because the final judgment could not remedy the damages, i.e. money would not be enough to fix things later. But the Plaintiffs just said that the problem was they were losing revenue! Anyway the judge still says:

Each user who purchases a pre-loaded set-top box has an incentive to permanently cancel his or her subscription to a distribution service such as those offered by the Distribution Plaintiffs. The loss of actual and potential customers constitutes irreparable harm

Except if you ban the boxes in the final judgment, those people would have to go back to cable! I am not sure I agree with the judge on this irreparable harm bit. And that is a big part of the appeal of this injunction, so those lawyers agree with me. We’ll see soon! As for the third part:

balance of convenience favours the Plaintiffs and the Defendants’ businesses will not unduly suffer from being restricted to selling and advertising only legal, non-copyright-infringing applications until this Court’s decision on the merits

“Will not unduly suffer”? Are you kidding me? You’re going to put them out of business! Anyway, the judge has made up her mind. Injunction granted. Basically goes hardcore on the Defendants, who are prohibited from:

Manufacturing, importing, distributing, leasing, offering for sale, selling, installing, modifying, operating or possessing Pre-loaded Set-top Boxes that are used or intended to be used to receive the Plaintiffs’ subscription programming signal

A whole bunch of other shit too. Like, don’t induce anyone else to violate those copyrights! And basically just don’t be dicks. My favourite part of the order is that the judge says if the Plaintiffs find other companies selling these boxes, the order will also apply to them too! That was nice of the judge.  Oh and btw, the judgment is mainly based in copyright law, so that whole copyright / radiocommunication dichotomy that I said was important was really just a red herring. Gotcha!

Internet Legal Catfight!

Normally this would be the spot for the superterrific happy hour funtime analysis, but meh, whatever. Like I said, this will probably be the first of four judgments (minimum) in this case. No need to spill my seed on this interim thing. And I kind of gave some opinion in the interview and some comments in my summary (such as it is). Fortunately, other legal commenters have no such reservations! And man oh man, my two tech law blogging idols are fighting again:

Why the Federal Court Crackdown on Set-Top Boxes Threatens to Chill Canadian Tech Innovation – Michael Geist

Why crackdown on pirate set-top boxes is good for innovation: a reply to Michael Geist – Barry Sookman

Oh mommy and daddy, can’t you get along? There are some nice little legal nuggets in both of their pieces. I will let you guys read for yourselves and decide who is right. If in fact one of them is.

I will leave you with a juicy little tidbit, a great quote from the judge which basically sums up everything, including my professional expertise and the future of my practice probably, and just the future of the internet generally:

This is not the first time a new technology has been alleged to violate copyright law, nor will it be the last.