The Popcorn Time software has become a popular way of watching movies and TV shows online. The user is presented with an interface that has the look and feel of established streaming services, such as Netflix. In many cases, Popcorn Time is used to access content made available without the authorisation of the rights-holders, but stopping the copyright infringement is difficult due to the decentralised nature of the underlying Bittorrent network. The website for the Popcorn Time software contains no direct links to infringing material.
Rights-holders internationally have pursued a number of strategies against Popcorn Time. This includes web blocking at the internet service provider (ISP) level (eg. court orders in UK, Italy and Israel) and legal actions against individual Popcorn Time users. Since the underlying filesharing technology of Popcorn Time is Bittorrent, users’ IP addresses can easily be determined unless they protect their identity with a Virtual Private Network (VPN) connection. In Germany and Denmark, lawyers have unmasked the subscribers behind IP addresses with a court order, and subsequently sent letters demanding compensation for copyright infringement. In the Netherlands, the rights-holder organisation Brein has managed to close six Popcorn Time “fan pages” through private settlements with the operators of these websites.
On 19 August 2015, the palette of legal strategies took a worrisome turn when two Danish citizens were arrested and charged with “distributing information and instructions about illegal content”, according to public statements given by the Danish Police. In both cases, the reason for the arrest was ownership of a website containing information about how to use the Popcorn Time software. The two websites, popcorntime.dk and popcorn-time.dk, appear to have been created independently of each other. Prior to the arrest the domains were seized as evidence in the case, and both websites currently display a notice that they have been seized by the the Danish State Prosecutor for Serious Economic and International Crime (SØIK). Strangely enough, the web servers hosting the real contents of the two Popcorn Time information websites are still running one month after the arrest, and they can be accessed if one knows the IP address of the server. The Domain Name System (DNS) records for the domains, of course, point to the server run by SØIK.
The specific charges against the two unnamed individuals are also mentioned on the seized websites. They are charged for contributing to copyright infringement of a serious nature (Section 299 b of the Danish penal code, which carries a maximum punishment of six years in prison). Section 23 of the Danish penal code contains a fairly broad provision on contributing to crimes committed by others through instigation or advice.
Neither of the websites contained any links to infringing material, only general information about the Popcorn Time software, all of which is available throughout the internet. The first hit when searching for “Popcorn Time” on Google is the website where the Popcorn Time software can be downloaded. Moreover, both websites contained a fairly clear warning to their readers that the use of Popcorn Time could be illegal, and that the material on the website should not be regarded as an encouragement to commit copyright infringement. One of the websites contained a link to the English website getpopcorntime.co.uk, which is still running, and which essentially has the same content as the now seized Danish website.
The prosecutor could perhaps argue that Popcorn Time is mainly used for copyright-infringing activities, and that the information on the website is advice to commit copyright infringement. In this case, the contributing act would be towards unknown persons (that have read the information on the website) and unspecified copyrighted works (as none are mentioned). If Section 23 of the penal code can be interpreted this broadly, it would have a seriously negative impact on freedom of speech. Any public discussion of software that could be used illegally or where the main use of the software is likely to be illegal, could potentially lead to a charge for contributing to the crimes of others. This could also affect internet intermediaries or their owners, as they could be charged with contributing to any illegal activities by their user base.
The two Danes are charged with contributing to copyright infringement of a serious nature, which usually involves activities on a commercial scale. Immediately after the arrest, the Danish Rights Alliance, which has close ties with SØIK, issued a press release claiming that both websites had substantial advertising revenue. This seems highly unlikely as the two websites were hosted on shared web servers with, respectively, 50 and 500 other domains. Websites with a large number of users generally run on dedicated servers in order to sustain the traffic. There were some banner advertisements on the two websites, but it is clearly worrying if minor advertising revenue by itself can be considered “commercial-scale” in connection with claims of alleged copyright infringement.
Police Arrest Men for Spreading Popcorn Time Information, Torrentfreak (19.08.2015)
Popcorn Time “Fan Pages” Nuked By Anti-Piracy Outfit, Torrentfreak (24.02.2015)
EDRi-gram: Ex parte domain name seizures in Denmark (08.10.2014)
Press release from the Danish Rights Alliance about the arrest (in Danish only, 20.08.2015)
(Contribution by Jesper Lund, EDRi member IT-Pol, Denmark)