Recently, there has been much publicity around self-declared ‘free’ TV streaming devices. The websites selling these devices such as http://www.freetvbox.ca/ and http://androidtvboxescanada.com/ allege that receiving an unauthorized stream of copyrighted material is legal in Canada. But is using these devices really legal? The answer raises complex questions of both law and fact. As a matter of fact, what are these devices actually doing? Do they download files only temporarily, or in some more enduring way? Do the devices only download files, or do they upload them as well? As a question of law, is it only an infringement of copyright to download a file that persists in some way? Or is downloading a stream also an infringement of copyright?
How TV Streaming Devices Work
TV streaming devices such as those sold from the websites above are small computers that come preloaded with software like the Android™ operating system, Kodi™ media server, and one or more Kodi™ plugins. These plugins are what connect to various media sources over the Internet, download files, and manage files on the device. These plugins may use one of two different distribution models, and one of two different consumption models.
Distribution is how a user receives a file. There are two commonly employed methodologies used to distribute files over the Internet: centralized distribution, where users connect to a single file hosting service and each download a copy of a file, and peer-to-peer distribution, where a network of users connect to one another, and share a file amongst themselves.
File hosting services, often referred to as file-lockers, are dedicated file servers, generally accessible to anyone over the Internet. A user connects directly to a file-locker, and downloads a file directly from it.
Peer-to-peer file sharing networks use a communications protocol like BitTorrent. There are three key principles to these protocols. First, every user downloading a file simultaneously uploads the file. Second, every file is split into small parts. And finally, a file is downloaded from multiple users concurrently, by receiving different parts of the file from different users. The protocol connects all users together in a network, who all simultaneously upload and download a file from each other. This design provides massively increased speed and reliability over centralized distribution.
Consumption is how a file is used once a user has received it. Regardless of which method is used to distribute a file, there are two ways for an end user to consume it: downloading a durable copy of the file for asynchronous consumption, or receiving a stream of the file for concurrent consumption. Even when a stream is received, it is technologically necessary for the user’s computer to make at least a temporary copy of portions of the file.
The differences between downloading a durable copy and receiving a stream relate to what order the parts of the file are delivered in, and what happens to those parts after they have been watched. When downloading a durable file, a user receives all the parts of the file in any order, and watching the file does not delete the parts of the file. When receiving a stream of a file, a user receives all the parts of the file roughly in the order they are watched, and parts are downloaded just prior to watching them. The parts of the file are then deleted once they have been watched. Thus, although the user does not retain a durable copy of the file when receiving a stream, there is at least a temporary reproduction of the file, or parts of the file, made on the user’s computer while consuming the stream.
What do the Plugins do?
What is problematic about many TV streaming devices is that it is not always clear which distribution and consumption model they are employing. The most common and free media player, Kodi™, has a library of plugins including Popcorn Time™, Pheonix™, Genesis™ and Pulsar™. These plugins use different distribution and consumption methods, in part based on how they are configured.
One of the most popular plugins, Popcorn Time™, uses a peer-to-peer network to download a complete copy of a file, which by default is deleted not as it is watched, but only when the application is closed. Popcorn Time™ also has an option to keep the downloaded files. So while purporting to be a streaming service, Popcorn Time™ downloads a durable copy of every file that is fully watched, which exists in its entirety on the user’s device, and at best is deleted sometime after watching.
Another common plugin, Genesis™, downloads files from file-lockers. By default it is configured to download parts of a file in the order they are watched, and delete the parts after they are watched. However, it can also be configured to download and store an entire file in advance of watching it.
Thus, how a plugin operates can depend on both the plugin and how the user has configured it. This complicates the legal analysis of copyright infringement.
Canadian Copyright Law
Sub-section 3(1) of the Copyright Act, R.S.C. 1985 c. C-42 (the “Act”) defines copyright as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, [and] to perform the work or any substantial part thereof in public”, including the right in paragraph 3(1)(f) “to communicate the work to the public by telecommunication”. Sub-section 27(1) of the Act makes it an infringement to do anything that only the owner of the copyright has the right to do. The Supreme Court of Canada (the “SCC”) has decided several cases in recent years that provide some guidance as to what activities carried out over the Internet infringe copyright under these provisions.
In Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, the SCC ruled that downloading a video game containing musical works is not a communication to the public of those musical works by telecommunication under paragraph 3(1)(f) of the Act. The court held that communication to the public under paragraph 3(1)(f) does not include delivering a durable copy of the work, because this paragraph is merely an example of the right to perform the work in public. Thus, while the download of a durable copy of a work implicates the right to reproduce the work, it does not implicate the right to perform the work in public.
In the companion case Rogers v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, the court held that paragraph 3(1)(f) can include a series of repeated point-to-point transmissions of a stream of the same work to numerous different recipients. Thus, the right to perform a work in public includes the right to post files to the Internet so that third parties can stream those works. This is so even where the individual transmission of each stream is triggered by individual users rather than the person who made the file available for streaming. Such communications can be viewed as “pull” communications initiated by individual users, rather than “push” communications more traditionally associated with the right to perform the work in public, such as radio or television broadcasts. That communications where a user pulls the communication to themselves, rather than having the person who made the work available push the communication out to the user, fall within the scope of paragraph 3(1)(f) has been further reinforced by the coming into force of the Copyright Modernization Act, S.C. 2012, c. 20, which added sub-section 2.4(1.1) to the Act. This sub-section clarifies that communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time of their choosing.
Thus, uploading a copyrighted work for download by members of the public over the Internet, or making a copyrighted work available over the Internet so that members of the public can receive a stream of that work over the Internet, infringes copyright. The entity that provides members of the public with unauthorized access to copyrighted works, whether by making those works available for download or for streaming, infringes copyright. A member of the public who downloads a durable copy of a copyrighted work from such an unauthorized service provider also infringes the copyright owner’s exclusive right to reproduce that work.
However, whether a member of the public who merely receives a stream of a copyrighted work from such an unauthorized service provider infringes copyright is less clear. Under sub-section 3(1), including paragraph 3(1)(f), the exclusive right granted to the copyright owner is to perform the work in public, including by communicating it to the public. The copyright owner is not granted an exclusive right to control who receives a performance of the copyrighted work. Thus, a user who merely receives a stream of a copyrighted work could argue that they do not directly infringe copyright, because they are not engaging in any act that the copyright owner has an exclusive right to do.
This analysis is complicated by the practical realities of how TV streaming devices operate. In practice, when content is streamed over the Internet, a user’s computer will make a local copy (i.e. “reproduction”) of that file on the user’s computer. This local copy could be considered to be a substantial reproduction of the copyrighted work, which would infringe the copyright owner’s sole right to reproduce the work, unless some exception to infringement provided by the Act applies.
The SCC has also considered the issue of whether temporary copies infringe copyright, albeit in the context of broadcasting operations. The court held in Bishop v Stevens,  2 SCR 467, that the right to broadcast a performance under sub-section 3(1) of the Act does not include the right to make ephemeral recordings beforehand for the purpose of facilitating the broadcast. Thus, the public performance right and the reproduction right granted under sub-section 3(1) of the Act had to be separately licensed to carry out the broadcasting without infringing copyright. This proposition was recently affirmed in Canadian Broadcasting Corporation v SODRAC 2003 Inc, 2015 SCC 57. These rulings mean that even non-permanent reproductions, like those made while streaming a file, could constitute copyright infringement, unless there is a specific provision in the Act that authorizes such reproductions.
There are numerous exceptions to infringement included in the Act, including section 30.71 covering temporary reproductions necessary for technological processes. Section 30.71 reads:
30.71 It is not an infringement of copyright to make a reproduction of a work or other subject-matter if
- (a) the reproduction forms an essential part of a technological process;
- (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and
- (c) the reproduction exists only for the duration of the technological process.
This is most likely the section that many commentators and device providers are relying upon to support the assertion that streaming of copyrighted content is legal in Canada, since any temporary copy of a streamed work on a user’s local computer is arguably made as part of the technological process of streaming the work. However, there are three requirements that a user must meet to rely on section 30.71, including that the only purpose of the reproduction is to facilitate a non-infringing use.
As discussed above, the activities of the entity making copyrighted works available for streaming by members of the public are an infringement of copyright. An end user viewing the stream might be able to argue that they are not personally engaged in an act of copyright infringement by receiving the stream. However, because the entity that made the copyrighted work available does infringe copyright, it is arguable that the use being facilitated by the user’s temporary reproduction is in fact an infringement of copyright, in which case the exception provided under section 30.71 would not appear to be available to exempt the temporary reproduction made on the user’s computer. The user might therefore be liable for directly infringing the copyright owner’s exclusive right to reproduce the work by making a temporary copy on their local computer for the purpose of facilitating the stream.
In other words, contrary to what is suggested by those promoting free TV streaming devices, it is not entirely clear that receiving an unauthorized stream of a copyrighted work in Canada does not infringe copyright. At best, this activity could be said to fall within a grey zone.
Another point relied on by those touting the legality of free TV streaming devices in Canada is that it would be difficult for copyright owners to enforce their rights against individual users. In practice, given the cost of taking legal action and the damages potentially available, it is not economical for a copyright owner to sue each and every individual infringer. However, copyright owners have and likely will continue to take legal action against individual end users, if only in an attempt to deter others from engaging in similar activities.
In practice, copyright owners can determine the identity of individuals who are engaged in copyright infringement on the Internet, and can initiate legal action against those individuals. Because peer-to-peer networks work by sharing a file among a large group of people, it is easy for copyright owners to discover who is using them. All a copyright owner needs to do is connect to a peer-to-peer network and log the IP addresses of everyone else sharing the file. IP addresses are allocated by internet service providers (ISPs), so a copyright owner can take the list of IP addresses and obtain a court order for the ISP to disclose which account holder was using each IP address at that time, as was ordered in Voltage Pictures LLC v. John Doe, 2014 FC 161. The copyright owner may then sue the identified alleged infringers for copyright infringement, which would result in significant costs to those individuals to defend the action (or alternatively a payment to settle the action). Thus, while requiring the involvement of the ISP, tracking unauthorized sharing over a peer-to-peer network and enforcing IP rights against infringers is relatively straightforward.
Copyright owners now also have the option of having the ISP send individuals who have allegedly engaged in copyright infringement a notification through the notice-and-notice regime established under sections 41.25 and 41.26 of the Copyright Modernization Act. The receipt of such a notification can be distressing to the user, and, although not an intended function of the notice-and-notice regime put in place by the Copyright Modernization Act, in practice such letters often include an offer that the copyright owner will not pursue legal action if the user pays a modest sum of money to the copyright owner. Thus, the end user may feel pressured to settle and avoid the possibility of legal action being taken against them.
Downloading files from file-lockers is potentially more difficult for copyright owners to track. Since there is no peer-to-peer sharing, the copyright owners would have to force a file-locker to log and share the IP addresses of whoever accesses their content. This may be difficult, as file-lockers can be located in jurisdictions outside of Canada, and therefore it may be difficult for copyright owners to obtain information from such entities. However, where such services are within the jurisdiction of the Canadian courts or are located in a jurisdiction that would enforce a Canadian court order, copyright owners may be able to obtain such information.
As another practical consideration, whether a user is downloading and storing or just streaming a file would not be discernable from the file sharing protocol employed. From the perspective of a peer in a peer-to-peer network, or a file-locker, an entire file is transferred to the user. Therefore even if a copyright owner wanted to only pursue people downloading a durable copy of a file, there would be no way to distinguish them from those receiving a stream of a file. This means that even if a user does not infringe copyright by streaming a file, users could still be contacted or sued by copyright owners, and would be required to establish in a legal action that they were merely streaming and not downloading a durable copy of the file.
Whether or not the use of TV streaming devices is legal is a complex question. Many who believe streaming to be legal employ simplified understandings of both the technology and the law. What each device actually does is not always apparent, and can differ based on its specific configuration. How copyright law will apply to the different configurations is also unclear. And finally, viability of enforcement is sometimes conflated with legality of the activity. This all means that the legal implications of receiving unauthorized streams of copyrighted content are not clear, and users should be cautious in relying on claims that the use of TV streaming devices to access unauthorized copyrighted content will not result in any adverse consequences for the user.