Can I Get Sued For Watching Online Video?

You've Got To Ask Yourself One Question: Do I Feel Lucky?

Well, do ya, punk? The music and movie moguls have done a good job of “educating” the public on the legal dangers of downloading copyrighted materials from Bittorrent networks and other file-sharing sites such as Napster, PirateBay and MegaUpload. Lawsuits against consumers of pirated content have persuaded many to turn to YouTube-like sites that stream illegal copies rather than allow users to download and save a copy for later use.

But is streaming really different from downloading? The question has technical, legal, and practical aspects, and the legal consequences are still unresolved.

Technically, “downloading” means the transfer over a network of any data from a host (such as YouTube) to a client (such as your browser). Whether the data is saved to a file or displayed on your screen doesn’t matter. So streaming is downloading. But is streaming an infringement of copyright?

Copyright protects a rights owner’s rights to make copies of a work, distribute copies, and control public performances of a work. (Copyright also includes other rights that aren’t relevant to this discussion.) The person who makes a work available for streaming violates all three of these rights. The consumer who watches or listens to streamed works may violate the right to copy it, and may be liable for “contributory infringement” by facilitating the making of infringing copies.

When you click a “play” button to start a stream, you initiate the making of a copy of the work which is transferred to you over the Internet. The host computer actually makes the copy and distributes it to you, but you told it to do so. That is contributing to infringement, according to rights holders’ lawyers.

What if you are merely present when someone else clicks the “play” button and you just watch or listen to the content? Then you are not guilty of any infringement. If you are in a sports bar watching what the owners put on TV, you are innocent of copyright infringement even if what is shown is a pirated work.

Fifty Shades of Streaming and Buffering

In lay terms, “downloading” has come to mean retrieving a file from a host and saving it to one’s own hard drive. The saving part doesn’t *appear* to happen during streaming, but it actually does. All or part of the streamed content is saved to a temporary file as part of the “buffering” process that makes streamed content play more smoothly. The entire file may remain available for replay until you close the browser tab in which you streamed the content.

But there is some grey area here. Some courts have ruled that such temporary files constitute direct infringement of the copying right. However, the U. S. Copyright Office contends there is no violation when “a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated.” So legally, the question remains unsettled.

As a practical matter, streaming is safer than downloading via a Bittorrent network. The copyright police need only join a Bittorrent “swarm” to capture all of the IP addresses of the peers who are sharing a file. It isn’t that easy to catch someone in the act of streaming a file. So policing efforts have concentrated on Bittorrent downloads… until now.

The Empire Strikes Back

The UFC (Ultimate Fighting Championship) Channel streams its mixed martial arts matches from a subscription site. These videos have been showing up on illegal streaming sites, costing the UFC money. In addition to suing the sites, the UFC has threatened to pursue lawsuits against users for copying and contributory infringement. The UFC will use the sites’ records of members and their activities to find out who streamed what.

And there's also the Copyright Alert System, spearheaded by the Recording Industry of America (RIAA) and the Motion Picture Association of America (MPAA). Stealth agents for these powerful trade groups are patrolling peer-to-peer networks, looking for illegally shared copies of copyrighted content. A series of alerts and virtual wrist-slaps will result if any infringements are detected. For those who persist in illegal downloading activity, the user's Internet Service Provider may impose reductions of Internet speeds, block Internet access, or take other mitigation measures. See The Copyright Police Are Coming! for more info on that.

The RIAA is particularly litigious, and has won money judgments against numerous individuals who were found to have illegally downloaded or shared copyrighted music. In one case, a jury slapped Boston College student Joel Tenenbaum with a $675,000 fine.

In summary, streaming illegal content is less risky than downloading it. If you feel lucky, you might get away with it. But it can still get you sued, and it’s still morally wrong. And why bother, when there are so many legal ways to get online entertainment for free? See my related article How To Get Free Movies Online - Legally to learn about your options.

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