FactFind: Is it actually a crime to download movies without paying?

[Len]

SINCE THE EARLY days of widespread internet use, there’s been an ongoing battle between media companies attempting to protect their copyright and users trying to access entertainment without paying.

Piracy is nothing new; trailers on videos telling us about dodgy sound and picture are lodged in our memory but those problems were nothing on the scale of today;s

The internet brought things to a whole new level and it’s fair to say that file-sharing sites like Napster transformed the industry.

Despite this, illegal downloading is perhaps more pervasive than ever and media companies are constantly attempting new legal avenues to stop piracy.

This week, some of the world’s biggest TV and movie studios were in the Irish courts in an attempt to cut down on streaming, successfully securing injunctions to block access to several websites.

In the fallout from that decision, one of our commenters wanted to know if downloaders themselves were breaking laws.

OU812 said they’d been told by an official body that it’s not actually a crime to download or watch a stream but that “actually uploading, seeding and streaming up” was.

So we set about taking a look?

The facts

To get some legal advice on the illegality or otherwise of downloading, we spoke to Eoin O’Dell, TCD law lecture and expert in the area of copyright.

Asked the question that was posed directly by the commenter, O’Dell said the word ‘crime’, while not inaccurate, is somewhat ambiguous.

He said that copyright infringement is most certainly illegal and may have both civil and criminal consequences, but that it is more often dealt with as a civil matter.

In large part because this is seen as the most effective remedy for those whose copyright has been breached.

That’s what happened this week when the film and TV studios secured an injunction against Internet Service Providers (ISPs) to block access to the streaming sites.

But just because media companies haven’t been targeting individual internet users, it doesn’t mean what they’re doing isn’t illegal. Or that they couldn’t be targeted either.

“As a matter of practice, they have been going after the obvious middle-men because they are easier to get an injunction against, but that’s not to say they can’t get injunctions against the actual infingers, the uploaders or downloaders,” O’Dell says.

Downloading copyrighted material is itself illegal and the subsequent sharing, uploading or seeding of such material could be construed as further breaches of copyright.

This further distribution applies to all the methods of infringement, not just online, O’Dell says.

“If I download something without permission or without paying, then yes that can still be an infringement of copyright.”

"All the other things would be additional infringements, like if I download and then make a copy, if I download it and make it available on a peer-to-peer network or if I download it and then then screen it, if I download it and then upload it, all these things are additional infringements."

Streaming

Whereas the previous wave of anti-piracy lawsuits focused on file-sharing sites like the Pirate Bay, the current wave is very much against streaming services.

Media companies have been routinely successful in closing down many of these sites but it is less clear what could be the consequences for users.

What people mightn’t realise is that by streaming illegal content, a user’s computer is still making a copy of it, even if that copy is temporary in nature and stored on the computer’s cache.

So the fact that the computer is making a temporary stream would suggest that users are breaching copyright.

There is some debate about this, however.

A 2014 ruling by the Court of Justice of the European Union held that streaming may be considered be exempt from such infringements as copies held in the cache of a computer are “transient or incidental in nature” and “an integral and essential part of a technological process”.

Overall, what does seem certain is that media companies are unlikely to start suing individuals for downloading or streaming anytime soon. That doesn’t mean however that users aren’t breaking any laws or that they couldn’t face any repercussions.