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[scorpioncbr]

Hi everyone, I have another general question. I am working on a chapter of my final dissertation and I am having a bit of trouble interpreting copyright law in respect to streaming.

The DCMA states that no copy whatsoever can be made to not violate the copyright, technically streaming does create a copy in the PC ram as well as internet cache etc.

What technically constitues a "copy"? would a viewer of a site like Youtube risk legal persecution for viewing a copyrighted video, or would the hosting site (youtube) or the uploader be liable?

I know downloading, p2p ect are definitely illegal should the material be copyrighted as a physical copy actually exists. But as streaming a copy is temporary (and unusable once offline) at best, I dont understand where it falls under US legislation.

Also, if the copyright holder in the US does not file charges could an authority in another country, persecute ex officio?

I thank you all for your time..

[Zonath]

"Copies" is directly defined in the Copyright Act in 17 USC § 101:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

So, if a work is fixed in a medium from which the work can be perceived, reproduced, or communicated, a copy has been made.  This would include copies in computer memory (some of which Congress excepted from infringement liability in a modification to the Copyright Act (as part of 17 USC § 117) in order to specifically overturn portions of MAI SYSTEMS CORP. v. PEAK COMPUTER, INC., 991 F.2d 511 (9th Cir. 1993), although much of Mai remains a good analysis for why copies in memory are 'copies', and I would suggest you read that opinion if you're interested in this issue.)

So, in a very technical sense, streaming a YouTube video to your computer (and thus making a copy in RAM and your HD cache) would be an infringement of the copyright, assuming the video contains unlicensed material.

YouTube's liability is technically limited by the Internet Provider safe harbor provisions contained in the DMCA (17 USC § 512), although the ongoing Viacom v. Google litigation is challenging Google's claims to immunity on various grounds.  The actual uploader of infringing content has no such safe harbor, however, and could possibly be sued for infringement.

And assuming the copyright holder doesn't sue (and the US Government does not prosecute) due to YouTube infringement, I would guess that other countries would generally only assert the jurisdiction of their laws to the extent that any infringing activity occurred within their borders, but am not 100% up on the exact international standards that have been developed in this area.

[scorpioncbr]

So would this technically mean that if Subject X uploads say Movie Y (violating copyright), he would be liable (obviously) Youtube (and therefore google) might be liable, and the Youtube user who watches said uploaded video could also be liable?

Has there ever been an actual case where a user (who did not upload) watched a 'movie' on youtube/megavideo/putlocker etc and was persecuted for it? wouldnt it be the hosting site responsability to eliminate any video which violates copyright?

Thank you for all your help (on this and my other question you answered)

[Zonath]

First off, "prosecuted", not "persecuted".

Secondly, the DMCA gives safe harbor from liability to providers of online services who comply with the provisions of 17 USC § 512.  So, a hosting site like YouTube would only theoretically be liable under certain (limited) circumstances.  The hosting company does have the responsibility under DMCA to remove infringing videos when properly notified of the infringement, but actually may run more risks in actively policing its content (and thus being seen to be exercising some form of editorial control, which could give rise to liability for infringement) than it does in simply complying with the DMCA by taking down when proper notice is given by a copyright holder.  The original uploader and the end user would be the two parties who would be most likely to be held liable in infringement lawsuits in this calculation.

And I don't know of any case in which an end user was sued for infringement based on viewing a video on a video-sharing site (and I suspect that there would be a pretty strong backlash against any entity that did attempt to sue end-users, not to mention that it would be pretty un-economical to do so -- at the same time, there were plenty of people who didn't think that copyright holders would ever go after the end-users of Napster, and we all know how that turned out...)  Of course, this does not mean that such a lawsuit is impossible, or that we'll never see such a lawsuit.

[scorpioncbr]

Hi Zonath,

Thank you for your quick response.

Yes I do realize that the term is prosecute, I used the term persecute in the sense that Lawyers XYZ would persistantly harass, worry, badger with C/D letters, threats of legal actions and the like (Is the term used not used correctly?).

One last thing which I can't really understand. Assuming the RIAA goes after downloader X by tracking his IP, they find out who the 'owner' is ad prosecute accordingly.
But say that said downloader did so through a public Wi-fi network such as the ones found in Starbucks and McDonalds. Would they be held liable as it was their connection from which the mp3/video was downloaded? Would they just implement certain filters or would they/could they monitor internet usage by posting a disclaimer in the terms and conditions, or would that violate privacy laws?

And lastly (i'm sorry i'm asking so much but given I don't have practical experience yet I have no idea what the actual approach is, and the law isnt 100% clear) wouldnt the fact that the RIAA monitors user internet usage (or requests personal info form ISP) constitute a violation of user privacy?


Thank you very much for all your time, your answer was of great assistance.

[Zonath]

Well, as I understand it, the RIAA needs to be able to prove that it's more likely than not that the download in question was initiated by a particular user, so on a public wi-fi network, there's a bit of a proof problem unless the RIAA is able to get a hold of the actual MAC address of the computer that's downloading (and/or uploading) the copyrighted content and then to connect that MAC address with a particular computer.  I am not well-versed in computer forensics though, so don't really have the knowledge to tell exactly how they do that. 

At the same time, the operators of the network connection points over which the infringing material passes (and this includes public WiFi operators) would not be considered to be infringing, and would bear no liability solely for providing the network connections through which infringement took place.  For some of the reasoning behind this, see Religious Technology Center v. Netcom, 907 F. Supp. 1361 (N.D. Cal., 1995).

Could the public Wi-Fi operator control access?  I think that the answer in most states would be 'yes'.  Privacy laws in the US aren't at all very restrictive of a public Wi-Fi operator's right to monitor or restrict internet traffic through an access point which they own.

And the method by which RIAA monitors internet traffic (through the P2P networks, at least), is to search for and log IP addresses of computers which are hosting infringing content.  Since those IP addresses are already out there, and publicly-visible (for the functioning of many P2P networks, those IP addresses need to be publicly-visible), there are no real privacy concerns.  Once those IP addresses are obtained, the RIAA generally tracks them back to the ISPs to which the IP addresses have been assigned and then subpoena the user information from the ISPs.  While many ISPs do have legal agreements which obligate them to protect consumer privacy, the courts do have the power to require them to surrender their user logs, even if it would otherwise be a violation of the privacy agreement.  Consequently, many ISPs actually state in their privacy agreement that they will not be held liable for cooperating with lawful court orders (although they probably wouldn't be liable anyhow, just due to public policy, it always helps to have a contract the user agreed to that can be pointed to.)

Should the ISP move to quash the subpoena, the issue of user privacy might come into play, but as far as I know, the court generally sides with the RIAA's right to ferret out people who are engaged in violations of the law.  I suspect that a subpoena of records from YouTube, in which the RIAA, MPAA, or other body was requesting the identities of actual unknown defendants (like in the P2P cases) would turn out much the same way.

And certainly, there are privacy concerns surrounding these issues, and there are groups (such as the EFF) who are agitating for stronger privacy protections and measures for Internet users, but there's not really all that many legal stumbling blocks in the way of a large industry body (such as the RIAA) getting the information it needs to pursue direct copyright infringers.