Tag Archives: file-sharing



March 23 / Computing, Copyright, Featured

On the Legality of Watching Unlicensed TV Streams

By: Monica Rodriguez

According to a September 2014 report by Nielsen, internet streaming has become the obvious choice for a generation on the go—with digital use among persons 18-34 at 16%.[1]  In fact, online video streaming had an increase of close to 60% during the 3rd quarter of 2014 among the same age group.[2]

Nielsen TV streaming Graph

Nielsen, Digital Growth is Fueling an Increase in Media Time.

 

In a world where demand and efficiency rule entertainment, young adults are moving away from traditional television viewing to digital video.  The Wall Street Journal explained that Americans increased web streaming to about 11 hours a month, up from 7 in 2013 and noted that online consumption is likely even higher, as viewing with devices such as the Roku or smartphones are not included.[3]  Although shows like HBO’s Game of Thrones or even the Super Bowl provide streaming on their own websites, in an effort to shift with the trend, many viewers choose to stream from unlicensed third-party streaming providers, citing that the account subscriptions and targeted commercials are major hindrances to their viewing experience.[4]  With the growing number of people who promote the digital platform, one significant question remains—is watching streamed, unlicensed television content even legal?[5]

Although there are many ways to focus on this issue, the most direct seems to be through an examination of copyright law.  17 USC §102(a) explains that copyright protection subsists in original works of authorship fixed on any tangible medium of expression; in other words, copyright protection applies to original works, like television shows, at the moment it is created.[6]  Exclusive rights with current copyright laws include ability to make copies and control distribution for revenue and profits.  However, there is not necessarily a violation of copyright if a “reproduction manifests itself so fleetingly that it cannot be copied, perceived, or communicated;” in other words, the “dividing line can be drawn between reproductions that exist for a sufficient period of time to be capable of being ‘perceived, reproduced, or otherwise communicated’ and those that do not.”[7]  Because of all these rights and limitations, the question of the whether watching unlicensed television streams is legal becomes complicated.

The Associated Press v. Meltwater case, in which daily headlines and bits of newspaper stories on Meltwater had links to the full online articles from the Associated Press as well as others, which made unauthorized copyrighted content available to viewers for free, had two different outcomes in the U.S. and U.K.[8]  While the U.S. focused on Meltwater as the host of infringing content, the European courts ruled that “users who see content online, without actually willingly making a copy of it, should not be held accountable for any resulting copyright infringement.”[9]  Jim Gibson, director of the Intellectual Property Institute at the University of Richmond law school in an article with Business Insider, furthered this concept explaining, “when the user downloads even part of a file—called ‘pseudo-streaming’— it counts as a copy of copyrighted material, which is illegal. And when the user streams content as a ‘public performance’—namely, when it’s shown to a substantial number of people […] it also constitutes a copyright violation.  Outside of these cases, accessing unlicensed streamed content is generally legal.”[10]

On the other hand, the government has been pushing Congress to make online streaming a felony and wants to shift blame to the viewers, declaring, “downloading a copy of the movie ‘Captain America’ illegally is a felony, but if you were to simply stream the same movie illegally it would only be a misdemeanor,’ [Congressman] Nadler [Democrat, New York] said. ‘Does this distinction make sense?”[11] Deputy Assistant Attorney General David Bitkower explained the significance of streaming viewers by pointing to the Megaupload.com case, in which over 150 million registered users (and 50 million daily visitors) would access reproduced and distributed copies of unauthorized content accounting for as much as 4% of all Internet traffic. [12]  Arguing that viewers also have a role in illegal stream watching, the Department of Justice explained that the amount of bandwidth devoted to copyright-infringing video streaming grew by 470% in a two year span beginning in 2010.[13]

In short, the answer to legality of watching streamed, unlicensed television content is that it remains legal, although likely not for long.  This is true for two main reasons—(1) we must account for technological advances like “pseudo-streaming” which currently serve as violation loopholes in copyright law and (2) Congress is making active steps to uniformly shift liability to viewers for both downloading and viewing unlicensed content.  Despite this legal debate, it is important to note that the MPAA (Motion Picture Association of America) seldom pursues litigation against individuals who stream these shows as it is difficult to identify the IP address linked to the illegal activity.[14]

 


 

[1] Nielson, Shifts in Viewing: The Cross-Platform Report Q2 2014 (2014),  

http://www.nielsen.com/us/en/insights/reports/2014/shifts-in-viewing-the-cross-platform-report-q2-2014.html

[2] Wall Street Journal, TV Viewing Slips as Streaming Booms, Nielsen Report Shows (2014),

http://www.wsj.com/articles/tv-viewing-slips-as-streaming-booms-nielsen-report-shows-1417604401

[3] Id.

[4] Christina Sterbenz, How Sketchy Streaming Sites Really Work — And Why Some Are Legal (2014),

http://www.businessinsider.com/are-streaming-sites-legal-2014-4; See also Stephanie Rabiner, Illegal Sports Websites Shut Down by Feds Ahead of Super Sunday (2012), http://blogs.findlaw.com/tarnished_twenty/2012/02/illegal-sports-websites-shut-down-by-feds-ahead-of-super-sunday.html

[5] Supra 4.

[6] 17 U.S.C.A. § 102. (West)

[7] U.S. Copyright Office, DMCA Section 104 Report 111 (August 2001); see also 73 Fed. Reg. at 40808.

[8] BGR, Pirating copyrighted content is legal in Europe, if done correctly( 2014), http://bgr.com/2014/06/05/streaming-movies-and-tv-shows-for-free/; see also Gigaom, You can’t break copyright by looking at something online, Europe’s top court rules (2014) https://gigaom.com/2014/06/05/you-cant-break-copyright-by-looking-at-something-online-europes-top-court-rules/.

[9] Supra 8.

[10] Christina Sterbenz, How Sketchy Streaming Sites Really Work — And Why Some Are Legal (2014),

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

[11] The Hill, DOJ To Congress: Make Online Streaming a Felony (2014), http://thehill.com/policy/technology/213285-doj-to-congress-make-online-streaming-a-felony

[12] U.S. Department of Justice, Statement of David Bitkower Acting Deputy Assistant Attorney General Criminal Division, Copyright Remedies. ( 2014), available at, http://judiciary.house.gov/_cache/files/c2cf069f-5e3d-4449-8614-c05b183fd910/bitkower-doj-remedies-testimony.pdf

[13] Id.

[14] Stephanie Rabiner, Is Streaming or Watching Movies Illegal? (2012), http://blogs.findlaw.com/law_and_life/2012/04/is-streaming-or-watching-movies-illegal.html

August 17 / Computing, Copyright

File Sharing: A Tool for Innovation, or a Criminal Instrument?

The dawn of peer-to-peer networks and the subsequent rise of file sharing over the Internet have proved to be a considerable threat to the revenues of the Recording Inpdf version dustry Association of America (“RIAA”) and the international music community.  While early music downloading across peer-to-peer networks on the Internet was largely limited “to college students with access to fast pipes and techno geeks sufficiently driven to search the Net for the latest Phish bootlegs,”[i] the market for illegally downloaded music taken from file sharing websites has expanded to astronomic proportions and continues to do so even at present.[ii]  The results of this expansion proved doubly costly to the RIAA, as the record industry has suffered reduced music sales and has simultaneously attempted to wage a multifaceted war against file sharers and their networks.[iii]  Yet, the RIAA’s strategies have ultimately damaged the association’s reputation and also the music industry generally.  Due to their choice of targets, “[t]he media and public have cast the RIAA as a villain that sues single mothers and even the deceased.”[iv]  Despite pursuing their cause even to the extent of suffering harms to their reputation, the RIAA’s efforts have proven largely fruitless as record sales have continued their downward trend.[v]

 

The failure of the RIAA to properly handle the issue of file sharing is evident from the record industry’s depressed financial statistics[vi] and the general public’s outcry against the association’s tactics.[vii]  This Note addresses some of the alternative (and potentially more popular) methods available to the RIAA in its efforts to overcome the rise of illegal file sharing…

Andrew Eichner

March 19 / All Articles, Computing

P2P File-Sharing: What The Supreme Court Has An Opportunity To Consider

When the United States Supreme Court hears Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (04-480) on March 29th, it has an opportunity to consider for the first time, the rights, responsibilities and liabilities of p2p network creators and their users, the content industry, and ISPs. Over 25 of the world’s largest entertainment conglomerates joined together in petitioning the Supreme Court for a grant of certiorari.1 Petitioners characterize this case as “one of the most important copyright cases ever to reach this Court. Resolution of the question presented here will largely determine the value, indeed the very significance, of copyright in the digital era.”2 Respondents agree that the stakes are considerable, observing that this “case raises a question of critical importance at the border between copyright and innovation: when should distributors of p2p software—a multi-purpose tool—be held liable for infringements that may be committed by end-users of the tool?”3

 

This case will review the Ninth Circuit ruling that p2p software providers do not have secondary liability for those copyright infringements possibly committed by actual direct users of the p2p software.4 The Ninth Circuit followed the paradigm set forth in Sony Corp. of America v. Universal City Studios, Inc.,5 which drew on the staple article of commerce doctrine from patent law.6 Under this rule, it is “sufficient to defeat a claim of contributory copyright infringement if the defendants showed that the product was capable of substantial or commercially significant noninfringing uses [and thus was a fair use].”7 The Ninth Circuit first followed this rule in the Napster cases.8 The court reasserted the Sony/(Betamax) rule in Grokster, concluding that since the p2p software was capable of substantial or commercially significant noninfringing uses, the copyright owners must show the software distributors had reasonable knowledge of specific infringing files.9 Relying on this, it found that since Respondents merely offer for download distributed file-sharing software (p2p software) that is capable of a myriad of uses, including downloading infringing and noninfringing content, no liability could attach as they (1) lacked knowledge of the infringing activity; and (2) did not materially contribute to the infringing conduct.10 Respondents offered nothing more than executable distributed file-sharing software; they provided neither support, nor storage, nor directory services that would have created a basis for secondary liability.11

 

Margo E. K. Reder*