When is streaming illegal? Here’s what you need to know about pirated content

Joe Supan
JS
Joe Supan
Oct 14, 2019

Within 24 hours of airing, more than 71 million people had watched the premiere of the final season of Game of Thrones

More than 75% of them did so through a pirated stream or download. For reference, that’s 54 million people — around three million more than the population of South Korea

“If you go around the world, I think you’re right, that Game of Thrones is the most pirated show in the world,” Time Warner exec Jeff Bewkes said in 2013. “Now that’s better than an Emmy.”

It’s not just Game of Thrones. Stats on unlicensed streaming are hard to pin down, but estimates range from 53% of millennials accessing illegal streams in one month to 78.5 billion visits to piracy sites in 2015. 

And with more and more (and more and more) streaming services entering the fray — and adding digits to TV bills — every month, it’s unlikely we’ll see a slowdown anytime soon. 

So what exactly constitutes illegal streaming? And what are the consequences?

(Major caveat: None of this should be taken as legal advice. We spoke with four copyright lawyers for this piece, and they all uttered some version of “it depends” during our interviews.) 

These cases can be highly fact-specific, and we don’t endorse watching pirated content under any circumstances. Our general rule of thumb: If paying for something will lead to money in the pockets of the people who made it, you should probably pay for it. 

As Jim Gibson, law professor and founder of the Intellectual Property Institute at the University of Richmond School of Law, put it to us: “Whether it’s wrong or not, in a moral sense, is something you can ask your friends or your minister. But whether it’s illegal from a copyright viewpoint, the best answer is, probably not on an individual viewer basis.”

Watching a stream of unlicensed movies, TV and sporting events is legal

Any discussion of the legality of streaming in the U.S. begins with the Copyright Act of 1976. This grants copyright holders “exclusive rights” to make copies of their work, distribute it and perform it publicly.  

And watching a stream — even if it’s unauthorized by the copyright holder — doesn’t technically violate these rights. There have been numerous challenges and interpretations as copyright law has adapted to the internet, but this reading has essentially held true. 

“I think the best interpretation of copyright law is that it’s not illegal to watch unlicensed content,” Gibson said. “The person who’s merely watching a stream should incur no copyright liability from that act alone.”

Watching a stream doesn’t constitute public performance

“Copyright attaches liability only to public performances, and streams aren’t public performances,” Gibson said. “Streams are performances, but they’re not public if it’s just you in the privacy of your own home and you’re not making a permanent copy — you start it and you stop it and that’s your only interaction with it.”

Nicole Haff, partner and head of litigation at Romano Law PLLC, a firm focused on business, media, sports and entertainment law, agreed with this interpretation. “I think it would be a hard argument to say that somebody watching a streamed video is publicly performing the video,” she said. “They’re not the one putting it out there, they’re actually receiving it.”

“Pseudo-streaming” doesn’t count as making a copy

One of the most common arguments for unlicensed streaming violating copyright law is that streams actually do create copies of the work in order to act as a buffer so your stream remains uninterrupted. This is technically known as a “progressive download,” but more commonly called “pseudo-streaming.” 

However, the pseudo-streaming argument hasn’t held up in court. “Copyright doesn’t care about versions of the work that are so transitory that they almost immediately disappear upon consumption,” Gibson explained. “That’s not a copy under the law’s definition.”

The U.S. Copyright Office itself basically conceded the impossibility of pinning this point down in its 2001 report on the Digital Millennium Copyright Act: “How temporary is temporary? Hours? Minutes? Seconds? Nanoseconds? The line would be difficult to draw, both in theory and as a matter of proof in litigation.”

It’s highly open to interpretation, and so far, those interpretations have been that streaming does not equal making a copy. 

“The cases basically say, “That’s not what we’re talking about when we’re talking about a permanent copy,’” Gibson said. “If you’re really doing real-time streaming and no lasting, accessible copy ends up on your computer, then YouTube might be liable, and the original uploader might be liable, but the person watching the stream almost certainly is not.”

Peer-to-peer streaming

There is one type of unauthorized streaming that could get you into trouble: Peer-to-peer streaming services like BitTorrent Live. Like torrents, these services rely on users to share the content. If you’re a viewer, you’re also a broadcaster, which does violate copyright law. 

“If I access that stream via a peer-to-peer streaming service that I know is not legal because I’m uploading unauthorized content in order to access other unauthorized copies, then yes, I can get in trouble for participating in streaming in that way,” Joy Butler, attorney and author of The Permission Seeker’s Guide Through the Legal Jungle, told us.  

But these types of peer-to-peer streaming networks aren’t all that common right now, and you typically have to opt in by clicking “Allow” before joining a stream. It’s unlikely that someone would unwittingly join one. 

Downloading unlicensed content is always illegal

While streaming doesn’t violate U.S. copyright law, downloading very explicitly does. You’re making a copy of the work every time you download something — a clear violation if it’s done without the copyright holder’s permission. 

“The copyright owner has the exclusive right to make copies. That’s why we call it the ‘copyright,’” Gibson explained. “So if you’re making a copy that is some sort of permanent version of a work, then even if you do it in the privacy of your own home, you may well be liable.”

That said, while there’s no debate on whether or not it’s illegal to download unlicensed content, ordinary users are unlikely to face legal consequences. 

“I think in most cases, the copyright owner’s going to want to pursue the person who’s actually uploading the content,” Butler said. “In the music industry, pursuing individual listeners to content was not very effective and it was not very popular from a P.R. standpoint.”

Gibson echoed those comments, telling us, “There was a time when the recording industry and to some extent, the movie industry, was actually targeting those who simply downloaded illegally for their own enjoyment. But they basically haven’t been doing that for a good eight or nine years.”

“This is not to say it’s OK to do. If you download, you are very likely infringing copyright and shouldn’t do it. But your practical likelihood of getting sued is pretty low if you’re just an individual downloading for your own consumption”

BitTorrent users are more likely to be sued

BitTorrent is an exception. Downloading through torrents adds another layer of wrongdoing, as you’re also distributing the content every time you download. Legal action is much more common in these cases. 

“Companies will go after BitTorrent users,” Haff said. “Because you have to. By using it, you’re also uploading it. So you’re also contributing to the problem.”

Indeed, BitTorrent lawsuits have become something of a cottage industry in recent years, with an estimated 3,000 suits filed by copyright holders in 2018 alone. The chances that you’ll be sued are still slim, but it’s much more likely than with other downloading methods.

Hosting an unauthorized stream is illegal — and more likely to be pursued legally

While watching an unauthorized stream is legal, hosting one is not — and it’s much more likely to draw attention from copyright holders.

“What they really want to know is who’s putting the content out there. Because that’s the bigger fish to fry,” Haff said. “So many Americans illegally stream, you would be in endless litigation.” 

Hosting an unauthorized stream falls under the distribution portion of the Copyright Act, but the criminal penalties are limited to misdemeanors, as opposed to felonies for downloading. 

“The maximum penalty is essentially a year in prison and a $100,000 fine — or twice the monetary gain or loss,” Haff said. 

In the past, the government has attempted to make penalties for hosting illegal streams more commensurate with downloading. In 2011, the Commercial Felony Streaming Act was introduced to the Senate. It would have made hosting illegal streams for the purpose of “commercial advantage or personal financial gain” a felony with up to five years in prison.

The bill faced significant backlash from the public, most notably from streamers on YouTube. There was even a “Free Bieber” campaign started by the pop singer’s fans, who worried that the covers of copyrighted songs that launched his career could put him behind bars if the bill passed. 

Ultimately, that outcry was enough; the bill was never even voted on. Today, hosting an unauthorized stream remains a misdemeanor in the U.S., although civil damages are more likely in most cases.  

Copyright enforcement is almost always civil, not criminal

While there are harsh penalties in place for illegal streaming and downloading, you’re much more likely to face action from the copyright holders themselves than the government. 

“The vast, vast majority of copyright enforcement is civil,” Gibson told us. “There’s a very small number of criminal copyright prosecutions each year. I think the number’s probably around 100. They tend to be against large-scale, commercial piracy operations.”

“I’ve never heard of a criminal prosecution for personal use downloading, infringing though it might be. So that big FBI warning, it’s mostly just to scare people rather than present them with a realistic scenario of what might happen.”

Even if streaming is legal, viruses are still a concern

For many people, computer viruses from less-than-reputable streaming sites are as strong a deterrent as legal action. If a site is willing to break the law to host pirated content, it’s fair to assume that it won’t stop there.

Here’s what the Federal Trade Commission says on the topic: “Purveyors of pirated content are now spreading apps and add-ons that work with popular streaming devices. If you download one of these illegal pirate apps or add-ons, the chances are good that you’ll also download malware.”

That’s not necessarily as alarmist as it might sound. According to a 2015 report by the non-profit Digital Citizens Alliance, about one-third of illegal streaming sites exposed users to malware. The report estimates that these sites make around $70 million per year this way. 

“It’s clear that the criminals who exploit stolen content have diversified to make more money by baiting consumers to view videos and songs and then stealing their IDs and financial information,” said Tom Galvin, Executive Director of the Digital Citizens Alliance.

Following best practices for internet safety can go a long way in protecting you from malware, but using illegal streaming sites will always present a significant risk. 

The bottom line

If you’re simply watching a stream of unlicensed content, you’re not technically breaking the law. Where it becomes a crime is if you download the movie or show, or host a stream yourself. 

But just because you can doesn’t mean you should. 

We liked the way Jim Gibson put it to us: “The fact that something’s legal or the fact that something’s illegal but unlikely to result in a lawsuit, doesn’t necessarily tell us what’s right and wrong. People have to have their own moral compass about the kind of conduct in which they engage when it comes to copyrighted works.”

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