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Is Viewing Streamed TV from Secondary Sources Legal?

Posted by attorney Bruce Burdick

Generally viewing streamed TV shows is legal. It is the one doing the streaming that has to worry about copyright infringement. However, receivers making multiple copies or re-streaming would likely infringe. Receipt of video streams is not one of the exclusive rights enumerated in 17 USC 106, those being: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Note the last one, number 6, speaks to transmission not reception. The law also clearly states that secondary transmissions unauthorized are infringing: 17 USC 111(b) provides: (b) Secondary Transmission of Primary Transmission to Controlled Group.— Notwithstanding the provisions of subsections (a) and (c), the secondary transmission to the public of a performance or display of a work embodied in a primary transmission is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506, if the primary transmission is not made for reception by the public at large but is controlled and limited to reception by particular members of the public. Note that again the law speaks to transmission not reception. When you receive a video stream, e.g. TV feed, your computer arguably makes at least one temporary copy (which is what "buffering" is technically about), which is subsequently destroyed unless you are allowed to download and/or save it and do so. If you use a DVR or computer to time shift, you are certainly making a copy. However, the current law has not really caught up with technology yet, and arguably fails to say that receipt and possession of a single buffer copy (even if unauthorized) is an infringement. With the increasing ability of content owners to track file sharing to IP addresses and then subpoena identities of owners of those addresses, the copyright cheats have moved on to video streaming and the law has yet to really catch up. But copyright owners are rich, well lobbied, and very influential, so stay tuned as the law is likely to address and outlaw streaming of unauthorized content and technology may well catch up to make it somehow possible for copyright owners to capture the identity of the recipient of the unauthorized streams. So the bottom line is that, for now, receipt of streamed unauthorized copies is likely not going to get prosecuted, but that is not likely to stand for long and the networks, studios and labels are not going to accept that for long and will lobby and litigate until it becomes illegal. Ethically you know you should not do this as you are cheating the artists and their employers, and keep tuned as you might end up the test case in which even if you win you are going to spend a fortune defending if you do not settle.

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