Celebrating 10 years! 2007-2017

The Clouded Legality of Streaming Copyrighted Content

In the age of Kodi TV and unlimited streaming sites, the que lawyer205/26/17
Under U.S. Copyright law, its an uphill battle to allege tha bakertaylor05/30/17
Yup, a few years ago so my cites are probably outdated. interveningrights05/31/17
The thing to it is that the nature of RAM memory is NOT quit bakertaylor05/31/17
Streaming can refer to multiple processes. For example, if y interveningrights06/01/17
I've always been told that receiving a stream was not illega ruralattorney05/26/17
It is very likely copyright infringement. You are intentiona thirdtierlaw05/26/17
thirdtierlaw-- That is incorrect with streaming- with stream bakertaylor05/31/17
That is what I always thought as well. Until someone opined lawyer205/26/17
lawyer2, you really need to study and understand the concept bakertaylor05/31/17
quick answer: it's illegal, but you probably won't get in tr dingbat05/26/17
I've researched this before. I will find the cases when I ha jorgedeclaro05/27/17
not quite. There's a distinction between european courts, dingbat05/27/17
Under U.S. Copyright law, a "partial copy" isn't grounds for bakertaylor05/31/17
Hmm I think it would be illegal to view a stream but the cha isthisit05/27/17
For some good background on the issue of copyright and strea genylawyer05/28/17
I read ABC Inc. v. Aereo and though not addressed specifical lawyer205/30/17
and the complicated part about it is that hotlinking is the bakertaylor05/31/17
Nice sharing, I am here to share my experience, I am a bi markhascole11/29/17
The streaming/downloading distinction is interesting if inde onehell11/29/17
Quick answer: yes, it is illegal Better answer: they only g dingbat11/29/17
Illegal? Yes. Will you be caught? Probably not for stream isthisit11/29/17

lawyer2 (May 26, 2017 - 2:28 pm)

In the age of Kodi TV and unlimited streaming sites, the question of whether streaming copyrighted content is legal is still mostly unanswered. After seeing this "run for the hills" news story, it prompted me to do some research on the legality of Kodi-like streaming.

http://www.wxyz.com/news/national/amazon-fire-stick-being-used-as-platform-for-pirated-movies-music?partner=scripps&partner-sub=WXYZ&utm_source=facebook&utm_medium=partner&utm_campaign=scripps&utm_content=WXYZ

Unfortunately, I'm left with more questions than answers. Anyone else ever researched this?

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bakertaylor (May 30, 2017 - 3:29 pm)

Under U.S. Copyright law, its an uphill battle to allege that a stream is a "copy" in any relevant way, because the definition of "copy" means that the "copy" has to be permanently fixed on a medium in a stable, non-temporal way, as such that the "copy" can be used more than once. With Streaming, the computer deletes the copy about as fast as the copy was made- the copy never becomes "permanently fixed" within the legislative intent. Therefore, in the simplest terms, a stream is NOT a copy any more than the TV makes a "Copy" of everything you watch on cable. A position to the contrary would effectually make Television illegal under copyright law. Your just NOT going to get a judge to side with that.

However, this could fall under "public performance" rights, but that only applies to the persons that make the stream available- it won't apply to the end users, because the end user isn't "exhibiting" the performance of the work.

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interveningrights (May 31, 2017 - 4:30 pm)

Yup, a few years ago so my cites are probably outdated.

"Fixed" works are copyright eligible. 17 U.S.C. 102. A work is fixed in a tangible medium of expression when its embodiment in a copy ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. 101. The term "transitory duration" is not defined in the Copyright Act.

The Ninth Circuit has found that copies (of programs) in RAM are "fixed." MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). The Second Circuit disagrees. Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (buffers found in DVRs created copies that existed for 0.1-1.2 seconds before being sent to servers). I don't have the rest of the citations but I vaguely recall the Ninth Circuit was the minority position.

From a business perspective, it never made sense to sue the consumer. The RIAA had very little success and the public relations backlash was significant. The recent "porn trolls" also had very little success.

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bakertaylor (May 31, 2017 - 10:35 pm)

The thing to it is that the nature of RAM memory is NOT quite the same thing as the notion of streaming- with RAM, the computer stores the WHOLE THING for arbitrary recall of data by the CPU when needed. However- with streaming what happens is that the server sends the data over HTTP to the client, where the client's CPU uses the data and then immediately deletes it after the data is used-- Hence unlike with ram where we have the whole file in memory at a given time, with streaming we have only small fragments of the file in memory at any given time- the client is constantly processing, using, and then deleting the data, to where a whole "copy" of a file is NEVER generated in the first place. Hence, the Ninth Circuit's ruling would be moot to the case in point, because with streaming, the whole file is NEVER sent in one piece, and therefore can't constitute a "copy" within the legislative intent of copyright law. What's more, is that copyright adequately addresses streaming in a different way- which is the "right to public performance"-- which is a different concept entirely than the concept of "making an illegal copy". These types of case should be addressed under the "public performance" notion.

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interveningrights (Jun 1, 2017 - 12:39 am)

Streaming can refer to multiple processes. For example, if you're using remote desktop to watch a video stored on another computer, then you would be getting bits and pieces of that video but you would never get the entire file. By contrast, if you're using a service such as YouTube or Netflix, what you're actually doing is a progressive download. In that case, you're accumulating a portions of the entire video slowly (hence your ability to view portions of the video you've already downloaded without further downloads).

In either scenario, I don't think your argument gets around copyright infringement. You don't need to copy the entire file to be found liable for copyright infringement. You would liable for a non de minimis use of the copyrighted work.

With respect to "public performance," I think there are still several unresolved issues before it can be reliably (consistently?) applied to streaming. The Court did not address the difference between private and a public performances. They also limited the application of Aereo to any different technology.

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that [q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which Congress has not plainly marked [the] course, should await a case in which they are squarely presented.

Am. Broad. Co., Inc. v. Aereo, Inc., 134 S. Ct. 2498 (2014).

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ruralattorney (May 26, 2017 - 5:20 pm)

I've always been told that receiving a stream was not illegal since no actual copying of the work has been done, but I've never actually researched it. I know that streaming is illegal in the EU.

Realistically, the person selling streams is much more likely to get in trouble than the person receiving a stream.

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thirdtierlaw (May 26, 2017 - 8:19 pm)

It is very likely copyright infringement. You are intentionally downloading media to consume. It doesn't just go into RAM as lawyer2 suggests below. It is saved as a temporary file on your computer. You can easily retrieve and keep that file.

That being said, it makes very little sense to sue just a downloader. What are the damages? $20 for a movie? That is without even getting into the hassle of determining who downloaded the file.

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bakertaylor (May 31, 2017 - 10:43 pm)

thirdtierlaw-- That is incorrect with streaming- with streaming the data never gets saved to an "object" rather it gets used and immediately deleted- therefore it is not a copy. Rather what the decisions you reference involve is storing whole objects in RAM which is an entirely different IT concept.

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lawyer2 (May 26, 2017 - 5:27 pm)

That is what I always thought as well. Until someone opined that "Copying data to the RAM has been determined by appellate level courts to be a copy."

http://www.businessinsider.com/are-streaming-sites-legal-2014-4

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bakertaylor (May 31, 2017 - 10:44 pm)

lawyer2, you really need to study and understand the concept of streaming- streaming doesn't store an object into ram- rather it is a constant flow of data that is used by a program and then deleted from the client.

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dingbat (May 26, 2017 - 10:54 pm)

quick answer: it's illegal, but you probably won't get in trouble for it

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jorgedeclaro (May 27, 2017 - 12:21 am)

I've researched this before. I will find the cases when I have access to something beyond a phone, but most courts have found streaming not to violate copyright law. Most have rejected technical temporary recording that comes with streaming is making a "copy." Vast majority of courts treat it like traditional copyright: the performer is the infringer, not the viewer.

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dingbat (May 27, 2017 - 1:56 pm)

not quite.

There's a distinction between european courts, which place the blame on the person making the stream available, and generally considers the person viewing the stream as a bystander, and the american courts, which consider it a violation

Technically, when you're streaming, your computer is downloading small parts of a file. Even though it's a small part, it's still making a (partial) copy, which is illegal ("pseudo-streaming")
Note that you're unlikely to get in trouble for it.
Also not that this is different from torrenting, where you're also distributing small parts of files, and that they may go after you for

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bakertaylor (May 31, 2017 - 10:46 pm)

Under U.S. Copyright law, a "partial copy" isn't grounds for suit under the de minimus rule, UNLESS The "partial copy" is a significant portion of the work that would constitute a "heart of the work" in and of itself.

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isthisit (May 27, 2017 - 10:56 am)

Hmm I think it would be illegal to view a stream but the chances of your average Joe actually being prosecuted/caught for watching streams are infinitesimal.

I've not recently looked into the legality but I'm erring on the side of caution.

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genylawyer (May 28, 2017 - 1:09 pm)

For some good background on the issue of copyright and streaming live TV, read ABC Inc. v. Aereo.

It's a very fact specific question of whether your technology violates the transmission clause under the Copyright Act. I think it's theoretically conceivable to find a legal way to do it, but practically impossible.

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lawyer2 (May 30, 2017 - 5:06 pm)

I read ABC Inc. v. Aereo and though not addressed specifically, the court alluded in its dicta that individual streaming constituted a "performance." Further, " . . . any individual is performing whenever he or she . . . communicates the performance by turning on a receiving set."
However, the Court seemed to distinguish the aforementioned [streaming] from United States v. Soc. of Composers Et Al., where it was held that "a download of a work is not a performance because the data transmitted is not "contemporaneously perceptible"."

It seems like the varying illegality turns on whether the copyrighted work would be considered "streamed" or "downloaded"


. . . the rabbit hole continues

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bakertaylor (May 31, 2017 - 10:52 pm)

and the complicated part about it is that hotlinking is the equivalent of streaming, and using a video tag in an HTML page isn't making a copy at all- rather it only "recalls" the original copy from the third party server via link.

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onehell (Nov 29, 2017 - 12:48 pm)

The streaming/downloading distinction is interesting if indeed one is illegal for both parties and the other is only illegal for the facilitator.

That said, this is just stuff the industry has to come to grips with, as it has done with legal online music. I remember in the Napster era, there were kids at my college getting served with federal lawsuits for music sharing. Everyone was doing it, but the record company's approach was to randomly pick people all across the country and make examples of them.

But it wasn't the lawsuits that extinguished illegal music sharing, it was iTunes. At first, all the files were loaded with DRM. As of I think 2009 or so, they stripped out the DRM. Why? Because they realized that it wasn't necessary, because it is actually possible to compete with free. Buy a song from iTunes and you know it will be what it says it is, will be of high quality, it's legal, you don't have to go hunting shady websites for it, etc. A small amount of money is paid essentially for peace of mind and ease of use. Same thing with VHS tapes, which at one time the industry tried to squash because people could tape TV shows and movies. But those recordings would be of low quality, interrupted by commercials, etc. People were still perfectly willing to pay for professionally-recorded copies of these movies, so VHS actually ended up being profitable for them. DVDs were the same thing: Sure you could download some garbage illegal copy, compressed all to hell with DIVX or whatever and burn it on to a disk, or you could just buy a copy from a store.

Now, you can legally stream most stuff on Hulu/Netflix, and we are being shown once again that ease of use can compete with free stuff of questionable legality and quality. For some reason live sports remains one of the holdouts, but eventually they're going to have to offer a legal streaming option, for which they will be able to charge and people will be willing to pay, and that is the solution: The rights-holders have to evolve with the technology, because if they don't the pirates will, and you aren't going to be able to just sue them out of existence because for every one you take down ten more will pop up. But give people legitimate options to do what they want to do, such as stream live sports over the internet, and history has shown us time and again that people will pick the legitimate option if you simply price it right and make it easy to use, just as iTunes killed Kazaa and Netflix killed DIVX and before all of that, Blockbuster made it easier to just rent a movie than to wait for it to come on TV and tape it.

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dingbat (Nov 29, 2017 - 2:51 pm)

Quick answer: yes, it is illegal
Better answer: they only go after uploaders, not downloaders

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isthisit (Nov 29, 2017 - 3:35 pm)

Illegal? Yes.

Will you be caught? Probably not for streaming but you will be for uploading/downloading using P2P software.

I'm obviously not referring to legal streaming services like Netflix or Amazon Prime that pay for the license to stream.

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