Copyright aspects of downloading and streaming
||This article is written like a personal reflection or opinion essay rather than an encyclopedic description of the subject. (April 2010)|
Streaming and downloading (or saving) media files may often involve use of linking and framing Internet material, but they raise quite separate issues from linking and framing under copyright law. The reason for the difference is that, unlike (or in addition to) mere linking and framing, streaming and downloading often involve making infringing copies of the works in question, or else the organizations running such Web sites may become vicariously liable for infringement by actively inducing infringement by others. Accordingly, some sites (such as TV Links) that have employed their own interfaces to stream media content from illegal sources, and others that provide a facility for saving (downloading) copyrighted content from legal interfaces, have faced strong legal opposition.
The advent of open hosting servers meant that people could upload files to a central server, which would incur the bandwidth and hard disk space costs such files generate with each download. As search engines came from the public need to navigate the growing universe of web pages, highly dynamic link sites (i.e. web catalogs) emerged to address the particular fact that while hosts may provide files, hosts typically do not provide organized interfaces to their content. Link sites simply provide an interface for organizing information (links) to the media located at specific addressable locations on open hosting servers. Hosts issue a contract to each of its users which states that they are prohibited from using its service for distribution of copyrighted content. But users are typically anonymous (though their identities are almost always traceable), and the hosts can or will not take any action beyond responding to takedown notices addressed to specific files.
The issue is part of a larger issue related to the usage of the Internet to facilitate copyright circumvention (copyright infringement), often called "piracy". As overt static hosting to unauthorized content (i.e. centralized networks) is often quickly and uncontroversially rebuffed, legal issues have in recent years tended to deal with the usage of dynamic web technologies (decentralized networks, trackerless bittorrents) to circumvent the ability of copyright owners to directly engage particular distributors and consumers. The issue of linking is simply an aspect within the larger issue of web interfaces, such as ones that explicitly provide links to illegal content, and are organized, inventive, and dynamic in providing this facility. The expression of such information (links) is typically regarded as protected under free speech, even if this information is organized in accord with trademarked and copyrighted titles.
The advent of anonymous and open hosting servers has made it difficult to hold the hosts accountable, as these typically have claimed little responsibility for hosting such content, though in the past there have been financial reparations made (YouTube). For owners, taking legal action against such hosts is often successful, but tedious; hosts all regard each legal action as applying to particular media files, and not to others. Taking action against link sites like TV Links is conceived of as the way for owners to get redress; consumers are rarely targeted for legal action by owners because such actions typically raise negative publicity for the owner. Taking legal action against the technologies behind unauthorized "file sharing" has proven successful for centralized networks (Napster), and untenable for decentralized networks (Gnutella, BitTorrent).
Litigation (alphabetically by nation)
Pirate Bay litigation
On April 17, 2009, a Swedish court convicted four men operating the Pirate Bay Internet site of criminal copyright infringement. Pirate Bay was established in 2003 by the Swedish anti-copyright organization Piratbyrån to provide information needed to download film or music files from third parties, many of whom copied the files without permission. Pirate Bay does not store copies of the files on its own servers, but did provide peer-to-peer links to other servers on which infringing copies were stored. Apparently the theory of the prosecution was that the defendants, by their conduct, actively induced infringement. Under US copyright law, this would be a so-called Grokster theory of infringement liability.
The Swedish district court imposed damages of 30 million crowns ($3,600,000) and one-year prison sentences on the four defendants. "The defendants have furthered the crimes that the file sharers have committed," said district court judge Tomas Norstöm. He added, "They have been helpful to such an extent that they have entered into the field of criminal liability." "We are of course going to appeal," defense lawyer Per Samuelsson said. The Pirate Bay has 25 million users and is considered one of the biggest file-sharing websites in the world. It is conceded that Pirate Bay does not itself make copies or store files, but the court did not consider that fact dispositive. "By providing a website with ... well-developed search functions, easy uploading and storage possibilities, and with a tracker linked to the website, the accused have incited the crimes that the filesharers have committed," the court said in a statement.
|This section is empty. You can help by adding to it. (January 2011)|