Sky NZ – 2, Sellers of ‘Kodi’ boxes – 0

It’s been a good six months for Sky NZ. At least as far as its war on ‘Kodi’ boxes is concerned anyway.

‘Kodi’ boxes are set-top media and entertainment boxes so nicknamed because they use Kodi, a free, open source software application. Neither Kodi nor the boxes on which the software is installed are in themselves illegal. It is only when software plug-ins or add-ons are loaded onto the boxes which enable owners to view subscription-based content, like Sky TV and Netflix, for free that they become so.

So both the District Court and the High Court found this year. In July, Judge Gary MacAskill in the Christchurch District Court found the operators of Fibre TV, a seller of ‘Kodi’ boxes, in breach of the Fair Trading Act for misleading or deceptive statements concerning the legality of the set-top boxes they were selling. In October, Associate Judge Smith in the Auckland High Court found My Box NZ Ltd and its general manager, Mr Krishneil Von Roy Reddy, liable for the same breach. Sky NZ – 2, sellers of ‘Kodi boxes – 0.

Despite these victories, Sky’s worries are far from over. Firstly, ‘Kodi’ boxes with the offending pre-loaded software can be readily purchased online. They’re as easy to buy as your groceries.

Secondly, there are thousands of boxes already in homes around New Zealand. According to a survey commissioned by Sky TV, reported in the NZ Herald, some 8 per cent of the adult population or 300,000 New Zealanders are watching pirated versions of sports events, while 10 per cent regularly watch pirated movies and TV*.

The questions facing Sky are simple: how can it stop the sale of pre-loaded set-top boxes, and how can it stop box owners getting access to pirated content?

Alas, the answers are not so simple. Stopping the sale of pre-loaded boxes outright requires a law change. Helpfully for Sky, this change is likely to come sooner or later with the Government reviewing the Copyright Act 1994 and how it deals with a “rapidly changing technological environment which is impacting the way we create, distribute and consume content”**.

Stopping box owners from getting access to pirated content is a different ballgame. In December 2017, Sky prepared a draft application to the High Court, seeking to obtain injunctions against Spark, Vodafone, Vocus (primarily trading to retail consumers as Orcon) and 2Degrees, requiring them to block websites allegedly hosting copyright-infringing material.

Since issuing the draft, Sky has been working with the ISPs to undertake voluntary site-blocking. It seems to no avail: Spark and 2Degrees, for example, have recently both indicated they are reluctant to take on the role of ‘Internet police’*.

For now then, the legal status of, and the continued ability to use, ‘Kodi’ boxes remains uncertain. That being the case, you can be sure Sky’s lawyers will be busy.