Time up for Popcorn Time?

18-12-2015

Michiel Rijsdijk

Although the video platform Popcorn Time seems likely to fall under worldwide pressure for copyright infringement proceedings, a Dutch movie distributor, Dutch FilmWorks, is taking other measures: it has registered both the ‘Popcorn Time’ name and logo as trademarks in the Benelux region.

Popcorn Time, which uses BitTorrent software, allows its users to watch movies and series on an integrated media player. This software allows a user to upload videos, which can then be watched by all other users. The initial video provider, a ‘seed’, does not control the file after uploading. Another user, a ‘peer’, who wants to watch the video, will connect to the seed and download the video, and by doing so obtains a part of the seed.

As additional peers connect with the seed, the seed is dispersed among the peers, and a network from which the file can be downloaded is created.

As follows from the above, the platform creates a network in which multiple pieces of data are downloaded and then uploaded, which makes every downloader also an uploader of the file(s). Files that were illegally brought onto the platform, for example since there was no permission from the copyright owner to reproduce and disclose the works in the file, spread out among a large number of users, who all download the content and facilitate the uploading as well.

By doing so the work is reproduced and disclosed in breach of the copyright owner’s rights on the basis of the Dutch Copyright Act. For that reason Popcorn Time is considered to be illegal in The Netherlands and agencies protecting copyright owners’ interests have already taken action. For example, the Dutch foundation BREIN (Association for the Protection of the Rights of the Entertainment Industry) has already taken down six websites offering the Popcorn Time software (the websites ceased the offering upon receipt of a cease-and-desist letter from BREIN). Popcorn Time is installed on about 1.3 million Dutch devices.

Internationally several attempts have been made to stop Popcorn Time. But despite some successes, copyright owners are still faced with a working platform through other servers.

In another attempt to stop the illegal activities focus is now also laid on the users—as the users upload and download they act in breach of copyright. This has already led to court actions against individual users, and fines. For example, in the US 16 users were sued for using Popcorn Time. The pressure and threats of court cases against both the developers of the platform and its users can be effective. Not only did the developers of Popcorn Time shut down all the servers, but more and more users decided no longer to use the platform.

The case leads to an interesting debate about copyright in the 21st century. With current technologies and social media, ‘sharing’ data is easier than ever. How can we facilitate consumers to use such technologies, while respecting copyright at the same time? A balance also has to be found between the interests of copyright owners, user rights and privacy.

Despite this ongoing debate the measures against developers and users have at least made the users aware about the illegal nature of sharing works, making it less attractive to use and join the platform.

"Internationally several attempts have been made to stop Popcorn Time. But despite some successes, copyright owners are still faced with a working platform through other servers."

Film distributor Dutch FilmWorks decided to take a proactive step in the battle against Popcorn Time. It successfully registered the name and logo ‘Popcorn Time’ as trademarks at the Benelux IP Office.

Although Dutch FilmWorks declared that it has no plans to enforce the trademarks, it can be doubted whether it will be able to do so. The name and logo became well-known before the registration, and moreover are they known not to be a mark of Dutch FilmWorks. Any action against the commercial use of the ‘Popcorn Time’ trademark by Popcorn Time could lead to a counterclaim for cancellation of the mark on the basis of a bad faith application.

These claims could also be brought forward by third parties, as interested parties that are trying to latch on to the popularity of the name Popcorn Time for the offering of a similar platform. Moreover, if the trademark is not used after the five-year grace period, it is open for invalidation.

Although it seems a defensive registration with an unclear scope of use, the action did give the media attention concerning Popcorn Time a stir, with the intention of causing the topic to be even more in the minds of the platform’s users.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

Michiel Rijsdijk, Popcorn Time, trademark, Benelux IP Office, Dutch FilmWorks, BitTorrrent, network,

WIPR