Illegality of viewing streamed content is far from certain

After court action taken by a group of film studios to have three movie streaming portals blocked, the cat-and-mouse game of internet piracy endures as technology continues to outpace copyright law.

Monday's Commercial Court case was taken by the Motion Picture Association (representing Disney, Paramount, Sony Pictures, Twentieth Century Fox, Universal Studios and Warner Bros) against Irish internet service providers (ISPs) concerning websites Movie4k.to, Primewire.org and Onwatchseries.to .

MPA told the court that WatchSeries attracted almost two million visitors from Ireland in October 2016, Primewire received 1.26 million Irish visitors and Movie4k had 200,000 visitors.

It wants to block access to these sites within Ireland because they provide links to other websites hosting copyright-infringing content, a substantial portion of which are movies and television shows made by these six studios.

iPhone’s 10th birthday: ‘They have kind of taken over people’s lives’

---

Germany plans tougher measures against hate speech

---

One in ten young couples row weekly over phone use - survey

---

Twitter unveils measures to curb online abuse

---

Given the number of Irish visitors, it is safe to assume there are some nervous internet users out there wondering if what they are doing is illegal and if they will be caught.

On matters of legality: it all depends. There is a big difference between downloading files that are then stored on your hard drive and streaming online content. The former is illegal and the latter is, well, complicated.

In 2001, the first wave of worldwide, court-backed crackdowns on internet piracy came when music-sharing site Napster shut down after being sued by Metallica, Dr Dre and the Recording Industry Association of America.

The second wave reached Ireland in 2009 when Eircom agreed to block torrenting site ThePirateBay, where users had free access to hundreds of thousands of movies, TV shows and music albums, all available to download in chunks or "torrents" hosted on computers around the world.

Blocking of PirateBay

In 2010, a “three-strikes” rule was introduced by Eircom whereby alleged copyright infringers were sent a warning notice, with a seven-day disconnection following the third notice. By 2013, all other Irish ISPs were given 30 days to follow suit by also blocking access to ThePirateBay but hundreds of other similar torrenting sites popped up in its place with new ones emerging each time another was blocked.

Even so, it is relatively easy for savvy internet users to find a way around accessing these blocked sites while their activity remains (for the most part) undetected. There are hundreds of VPN (virtual private network) providers offering services that trick websites into thinking a computer is not located in Ireland but is in a country where ThePirateBay, for example, is not blocked.

These services also hide your IP (Internet Protocol) address, which is a unique numeric code that identifies your device as it connects to the internet. Normally, an ISP can see your IP address but, by using a VPN, this IP address will be hidden and upload or download activity is encrypted.

VPNs are also frequently used to "unlock" region-specific content on legal streaming sites such as Netflix, allowing users to view content intended for the US market. Despite the recent crackdown on VPN services by Netflix, there are many that can still find a way.

Back to streaming: sites such as Primewire claim they are not technically engaging in copyright infringing behaviour. Primewire states it “does not host, provide, archive, store, or distribute media of any kind,” acting as an index of media hosted by other websites “completely outside of [its] control”.

Internet ‘cache’

Visiting these sites is legal but the law is not clear on whether the act of streaming copyright infringing content is. EU law appears to indicate the act of streaming this kind of material is not illegal. A 2014 ruling from the Court of Justice of the European Union ruled that “copies [of content from a website] on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process . . . and that they may therefore be made without the authorisation of the copyright holders”.

This ostensibly means that anyone within Europe can view content online on a computer screen – copyright restricted or not – without breaking the law. This ruling was in relation to the British Meltwater case where it concerned news aggregator sites that linked to newspaper articles rather than directly referencing streaming movies or TV shows. Precedent or not, if this ruling is tested in a case involving streaming of copyright infringing materials, it is difficult to say if it would be upheld.

A 2015 survey of Irish adults found that while over 36,000 are downloading illegally (no numbers yet on streaming), 42 per cent stated it is a last resort if they cannot find the content legally elsewhere.

It is for the moment unlikely there will be “cease and desist” letters from ISPs for those continuing to visit such sites on their laptops or through android TV boxes but the law remains unchanged on hosting and ownership of pirated content: it is illegal.