Back in August of 2012, Judge Posner of the 7th Circuit issued an opinion on a preliminary injunction stemming from a copyright infringement case filed by Flava Works (creators of adult content) against Gunter and his site, which was providing user-submitted links to streaming content that belonged to Flava Works. There are a couple of things at issue in the case – which isn’t resolved, just yet – but the shocking thing that came out of Posner’s decision is a statement that many have interpreted as meaning that streaming content as a home user does not constitute copyright infringement and is therefore legal.
That’s close to what Posner was saying, but it also misses his larger point – and it’s based on a statement he made in an appeal on a preliminary injunction, which has its own problems. What you really need to understand about Posner’s decision before you go out streaming to your heart’s content is that 1) he never says that streaming infringing content is legal and 2) his entire position is based on what could turn out to be a misunderstanding of the technology behind streaming content.
What Posner says in Flava Works v. Gunter is that he does not believe that streaming content is copyright infringement because it is more like sneaking into a movie or stealing a physical copy of a DVD than it is like downloading a pirated version of the film. Note that, while these two things are not copyright infringement, they are still entirely illegal. Posner is not saying that streaming content in circumvention of copyright is legal, he merely says that it does not appear to be copyright infringement.
There are two things you need to consider before you choose to embrace this as a blanket approval of streaming: First, Posner is only talking about the receiving end of a streamed transmission – he is equally clear that uploading and hosting that streaming content is totally copyright infringement if the hosting is unauthorized. The reason that isn’t implicated in Flava Works is that the links are to Flava Works’s content behind their paywall – it circumvents their security, but there is no hosted copy of the content (except there actually is, in some cases, but Posner doesn’t address that). Second, and more importantly, Posner’s position on streaming content is based on the assumption that no local copy of the content is created during the streaming process.
This is almost certainly untrue – at the very least, it will be up to interpretation.
There are two models of streaming software that I have been able to discover as I researched this issue: real streaming and pseudo-streaming. The first, I believe, is used by Netflix. The second is definitely used by Youtube. Which version of streaming a site employs makes a huge difference in determining whether a copy was made.
Starting with the easier case, sites like Youtube that rely on pseudo-streaming create a full physical copy of the content on your hard disk – usually in your browser’s cache. The internet is rife with methods of capturing these files in order to save a video you’ve watched on Youtube as offline content (which is totally copyright infringement and totally not kosher). I think that, in this sort of case, it would be hard to argue that streaming the content was not copyright infringement because it is essentially indistinguishable from downloading a copy of the file outright. You’ve created a complete copy of the infringing content on your computer and it will remain there until you actively delete it or it is deleted by your browser automatically. Either way, you’ve downloaded the file.
In the other case – real streaming – things are a little more complicated. In real streaming, no physical file is created on your hard disk. Rather, the content is loaded directly into RAM and played from there in a buffered stream. This means that there is no physical copy on your hard disk at any time – which makes an argument for copyright infringement more difficult. I can see an argument, however, that playing a file through real streaming will result in the creation and immediate destruction of a copy of the work in the computer’s RAM. I don’t think this is terribly different from downloading, watching, and then deleting the file – but there is certainly room here for a determination that real streaming does not constitute copyright infringement.
Of course, neither form of streaming exists in a vacuum and users are unlikely to know which they are employing when they access a site. There’s a strong policy argument for making both copyright infringement so that streamers cannot luck out of claims by the coincidence of having used a site that relies on real streaming rather than pseudo streaming. In both cases, the complete file has to be copied to the user’s computer in order for playback to occur – the only question is how much is loaded at a time and whether the transient creation of content in RAM is enough to constitute copying. Rather than creating two categories of streaming with different legal consequences based on something the users can’t determine, it would be better, in my opinion, to rule that all streaming involves a willingness and intention to copy and play the file locally and then to delete it afterwards – with the option of repeating the process again as often as desired.
Why, then, does Posner seem to say that streaming is not copyright infringement? This was an appeal of a preliminary injunction – one of the most basic beginning steps of a copyright infringement action. There had not been discovery and examination of the way that streaming works and whether copies are created on users’ computers at the point where Posner made his determination. As a result, Posner seems to understand the technology of streaming to be similar to that of broadcast, with users passively receiving a transmission and merely decoding that transmission as it passes by.
Perhaps a fuller examination of streaming would result in the same determination – it does not constitute copyright infringement. In my opinion, though, streaming is no different from downloading files and then deleting them after viewing them – which is totally copyright infringement. I don’t see how a court could justify drawing a distinction between the two based on the idiosyncrasies of the technologies involved.