To Stream or to Torrent? That is the 21st Century Question.

WITH THE outrageous cost of cable these days, it’s no surprise many people look to other sources for their viewing pleasure. Enter torrenting and streaming: two online sources to watch free movies. But are they free? Could you unknowingly be exposing yourself to potential liability in the hundreds of thousands of dollars by torrenting or streaming?

Remember the glorious days of Napster? Unlimited free music! And how great it was – you no longer had to spend $20 on a CD when all you wanted was one song. Through Napster, you could get just that one song, and better yet, it was free. That is, until artists and music labels started suing downloaders for copyright infringement.

Isn’t it the same when you watch unlicensed movies online for free? Can you be sued just like Napster downloaders? Well, it all depends. Let’s take a look at two common forms of online movie watching: torrenting and streaming.

The Torrenting Temptress

“Torrenting” is a process where one person, the “seeder,” uploads a movie to a torrenting database for other users to download for free. Once one user downloads the movie, he or she simultaneously becomes an uploader to other users – and so on and so forth, until several users are downloading and uploading the movie at the same time. The key to torrenting for copyright purposes, is that you have to make a copy of the movie — by downloading it onto your computer — before you can watch it.

Therein lies the problem because, under the Copyright Act, the owner of a copyright has the exclusive right to reproduce — or make copies of — its copyrighted work. 17 U.S.C. § 106(1).  When you make an unauthorized copy of a copyrighted movie, you violate the owner’s copyright in that movie.

So, what’s the big deal? Well, you could be liable for a minimum of $750 or a maximum of $150,000 for making that copy.

“So what?” you say. “They won’t be able to catch me.”

Au contraire, my friend. Every time you download — and subsequently upload — a movie via BitTorrent, a sort of digital fingerprint goes with it. You unwittingly share your IP address with the user downloading from you. All that user has to do to uncover your identity is subpoena the Internet Service Provider that leases that IP address to you and require it to reveal your identity. (Or, rather, the identity of the person who subscribes to the Internet service.) And just like that, the copyright owner can sue you for infringing its copyright.

The Rise & Fall of Malibu Media in Florida

One problem for copyright owners whose works find their way onto BitTorrent sites is that suing downloaders can be very costly. The cost of suing one suspected infringer for one movie far outweighs the amount the owner will likely recover in court, making it a losing battle. To make it worthwhile, a copyright holder might be tempted to model its litigation after that well-oiled machine that was Malibu Media’s reign over the federal courts, including in Florida, until 2015: Suit over multiple downloads.

Malibu Media is a pornographer whose videos found their way into many torrent websites, then were downloaded in droves by seemingly anonymous users. Its business model? Search out mass downloaders — the ones who downloaded the most movies, often fifteen or more — and scare them into settling. Malibu Media would threaten potential liability for upward of $30,000 per movie, or even $150,000 if the infringement was considered “willful.” Top it off with the thought of having names publicly associated with being a pornography downloaders, many torrenters felt pressured to pay Malibu Media to settle the case before their names were revealed in the public court record.

In each case, Malibu Media’s out-of-pocket cost to learn the account holder of the IP address responsible for downloading Malibu Media works was a mere $400 filing fee plus a nominal fee to the ISP. For that small investment, it could file suit and demand the Defendant’s hard drives. Fearful of turning over their hard drives, or pressured into doing so and then faced with an accusatory “expert” report, torrenters were put in a position where they often had no choice but to pay settlement payments, often large ones.

While the business model continues in other states, in Florida, it stopped. And we at Cynthia Conlin & Associates — having represented defendants in BitTorrent litigation since 2012 — like to think our defense of those lawsuits had something to do with that. When Malibu Media demanded defendants’ hard drives in discovery, we argued that unfettered access to an entire hard drive — and everything contained therein — was an abuse of the discovery process. And we prevailed. Afterward, the only way Malibu Media gained access to hard drives in Florida was when unsuspecting defendants defended themselves pro se and unknowingly gave in to Malibu Media’s demands. Within a year, Malibu Media stopped filing lawsuits in Florida.

Some plaintiffs still sue torrenters in Florida

So what does this mean if you are a small-time torrenter who has downloaded only one or two torrents a year? The odds are, you probably will not be threatened with a lawsuit. Most small-time torrenters never see legal action.

However, downloading unauthorized copies is still illegal and you still are running a risk. Some other production companies do occasionally file lawsuits in Florida. If you do become the subject of one of these lawsuits, it could potentially cost you thousands of dollars in legal defense fees and/or settlement payments, or even default judgment. For example, torrenters downloading films financed by Voltage Pictures (i.e., Dallas Buyers Club, The Cobbler) have been the subject of copyright infringement lawsuits, as well as those downloading a few other movies such as London has Fallen.

So, even if you try BitTorrent downloading only once, you could be subjecting yourself to a lawsuit. Torrenting is a risky way to get your films. You never know what film will cost you thousands.

Streaming – A Safe Alternative? Is it legal to stream movies?

OK, so torrenting copyrighted works is illegal. But what about streaming? Can you get in trouble for streaming unlicensed copyrighted movies?[1] I mean, you’re not making a copy, right?  Isn’t it just a live feed?

It depends on the type of streaming you are doing. Some streaming services require you to download a small portion of the movie onto your device; in that situation, you may have just committed copyright infringement.

But lets focus our attention on pure streaming, no copying involved: Is that illegal?

According to the Copyright Act, the owner of a copyright has the exclusive right to perform the copyrighted work publicly. 17 U.S.C. § 106(4). Let’s break that down into its parts: perform and publicly.

To “perform” an audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” § 101. To perform a work “publicly” means, among other things, to transmit a performance of the work to the public. § 101. Under this language, both the broadcaster (e.g., the streaming website) and the viewer (e.g., you) of a movie “perform” because both show the movie’s images and make audible the movie’s sounds. Am. Broad. Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498, 2506 (2014). The key under this provision as it relates to you, the streamer watching it by yourself or with your family in your home, is that you are not displaying it to the public. In that way, the Copyright Act does not apply to you. Therefore, if you are purely streaming the content, and watching it by yourself, you may not be committing an illegal act under the Copyright Act.  However, if you were to play it for the public, now you may be liable for copyright infringement.[2]

Ok, so you’re telling me I should stream my movies and not download them via torrenting sites. Great! But something just seems wrong about streaming, doesn’t it?  After all, artists spend time and resources to create entertainment for us, the public.  We show them our appreciation for their work when we pay for these movies through services like Netflix, HBO, or Amazon.  These businesses in turn, pay the copyright owner a licensing fee to broadcast its works to us.  Which in turn allows the artist to create more entertaining content.

So: Is it illegal to stream unlicensed content?  Probably not.

But my opinion?  Don’t do it.  We should reward those who give us an outlet at the end of a long day.  Those whose hard work allows us to laugh until we cry at stories of the redneck neighbor who gets his kicks watching the breast examination channel or warm our hearts with stories of an elderly man and his young companion who tie thousands of balloons to a house and fly away on an adventure to South America. We should show them that we value their work so they can continue to produce great content for years to come.

[1] Unlicensed streaming is differentiated from licensed streaming, like Netflix and Hulu.

[2] Keep in mind that the law is a living breathing body, and what is true today may not be so tomorrow.

Been sued in a BitTorrent case or have a copyright or other issue?

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