Streaming the Illegal

For those who are old enough to have lived through the rise and fall of Napster, the fear of punishment for being caught downloading music illegally was enough to make any one stop. For those who are not old enough to know what Napster is, Napster was one of the first music file sharing sites that allowed users to download music that someone else had on their computer.1

Napster made its debut in late 1999 and in 2000, record labels saw the first drop “in global record sales.”2 Lawsuits ensued and the founders of Napster even abandoned their creation as they “had been ordered to start charging [for the music] or else close entirely.”3 While the shutdown of Napster led to the creation of programs like iTunes and Spotify, it was not the end of pirating.

The litigation that enveloped the world because of Napster, and other filed sharing sites such as KaZaA, has not stopped people from hosting pirating sites, in which illegal music and movies are available for download and streaming without authorization.4 However, “[r]ecord labels, movie studios, and ISPs have joined forces for an industry-led warning system that will notify users when they are suspected of illegally downloading music, TV shows, or movies.”5 This is the essence of the Copyright Alert System. It is enforced by having the internet service providers (“ISPs”) send warnings to the users, which, if ignored, allows the ISPs to “turn to ‘Mitigation Measures’” which include such things as “temporary reductions of Internet speeds or redirection to a landing page until you contact your ISP to discuss the matter.”6

The question remains: what happens when a user streams pirated copyrighted works?

For sophisticated users, many believe they will not get caught by using a virtual private network (“VPN”) server, which allows the user to have an internet connection between the user’s router and a proxy server in a different location.7 This causes the internet protocol (“IP”) address to be linked to the proxy server.8 The internet traffic that is seen from the IP address linked to their home is the traffic between their home router and that proxy server.9 That traffic is encrypted, which means no one can really tell what the user is doing.10

For users that read the prior paragraph and still do not understand what using a VPN server is, the bottom line is the risk of being caught is still there. A “site that ‘makes available or facilitates the availability’ of rights-owners’ content without their permission is unlawful.”11 For the people that stream the content from these sites, it “is generally legal.”12 This activity becomes illegal “[w]hen the user downloads even part of a file . . . [a] when the user streams content as a ‘public performance.’”13 But user beware, even if there is no plan to do anything illegal, there is the “risk of exposure to viruses. . . poor quality, pop-up ads, and other annoyances” that may not make that free show or movie worth it.14

  1. Tom Lamont, Napster: the day the music was set free, The Guardian (February 23, 2013, 7:05 PM), https://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing.
  2. Id.
  3. Id.
  4. See, e.g. Amanda Holpuch, Minnesota woman to pay $220,000 fine for 24 illegally downloaded songs, The Guardian (September 11, 2012, 5:10 PM), https://www.theguardian.com/technology/2012/sep/11/minnesota-woman-songs-illegally-downloaded.; The Free Dictionary, http://www.thefreedictionary.com/pirating (last visited September 9, 2016).
  5. Chloe Albanesius, IPS Piracy Warnings: What You Need to Know, PC Mag (July 8, 2011, 12:41 PM), http://www.pcmag.com/article2/0,2817,2388261,00.asp.
  6. Id.
  7. Interview with Jonathan Bober, Vice President of Engineering, Argent Associates, in Westfield, N.J. (Sept. 10, 2016).
  8. Id.
  9. Id.
  10. “Encryption is the conversion of electronic data into another form, called ciphertext, which cannot be easily understood by anyone except authorized parties.” TechTarget, http://searchsecurity.techtarget.com/definition/encryption (last visited September 9, 2016).
  11. Katie Morley, Could you be fined for illegally streaming movies or TV shows, The Telegraph (June 5, 2015, 9:32 AM), http://www.telegraph.co.uk/bills-and-utilities/tv/could-you-be-fined-for-illegally-streaming-movies-or-tv-shows/.
  12. Christina Sterbenz, How Sketchy Streaming Sites Really Work – And Why Some Are Legal, Business Insider (April 24, 2014, 3:40 PM), http://www.businessinsider.com/are-streaming-sites-legal-2014-4.
  13. Id.
  14. Id.

Author: Melanie Chernoff

Melanie Chernoff graduated from Rutgers University with a B.A. in Physics in 2010 and again in 2011 with an Ed.M in Science Education. Before attending law school she taught high school physics and coached JV girls basketball for four years. The legal ramifications that teachers face on a daily basis are what drove Melanie to law school, however, her love of physics seems to have prevailed. This past summer, Melanie was a Summer Associate at Lerner David where she learned hands on about intellectual property prosecution and litigation. When not consumed with attending classes, doing homework, and studying, Melanie spends as much time as possible with her dogs, Kona and Pine, and working out when her ankle permits.