In these exceptionally strange times, people everywhere are finding new ways to socialize while maintaining physical isolation from friends, family, and everyone else on the planet. That isolation means no more gathering to watch movies together on the couch, but users on conferencing platforms like Zoom and Discord are engaging in a smart workaround: watching movies digitally together using these platforms’ streaming and screen-sharing capabilities.
Streaming movies and other media through platforms like Zoom and Discord is easy and fun, and it provides a small modicum of normality in this abnormal era of social distancing. But there’s one question that might be lingering in the back of your mind: Is streaming movies to friends and family this way legal?
To find out, we contacted James Grimmelmann, a professor of law at Cornell Tech and Cornell Law School who specializes in internet and intellectual property law. We weren’t expecting a simple answer, and unsurprisingly, he said, in short, “it’s complicated.”
In a “narrow analysis” of copyright law, Grimmelmann said, any “transmission” of copyrighted material is designated a “public performance,” and is subject to specific laws. However, the drafters of the “Transmit Clause” added to US copyright law in a massive 1976 revision failed to consider “the possibility of what you might call ‘private transmitted performances,'” which is how streaming movies to small groups of friends might reasonably be categorized, according to Grimmelmann.
The professor brought up the 2014 saga of Aereo, a company that was effectively capturing cable TV broadcasts and transmitting them to its own subscribers online. Aereo argued that it wasn’t engaged in “public performance” of broadcast material, in part because it used separate antennae to stream to individual users at those users’ direction, as opposed to one large stream that multiple users tapped into. The courts shut that argument down, ruling that Aereo was engaged in public performance, which means Zoom and Discord users streaming movies today (not to mention the companies themselves) might find themselves similarly subject to the Copyright Act.
However, Grimmelman explored some possible defenses, the most effective of which he thinks is simple fair use doctrine.
“Fair use comes in a couple of flavors,” the professor said. “There is–let’s call it the ‘small uses,’ the quotations and quotes and clips; there is ‘satire, parody, transformation;’ and there is one thing I think of as ‘reasonable, normal consumer uses,’ which can include all media, provided it’s very personal and appropriately limited to things you already had some kind of access to. And I think that the best case for streaming [to friends and family] comes in that last category, where somebody who legally has access to it is sharing it with a small group so they can watch together.”
He said the fair use defense for most people doing this is “pretty good,” though it depends largely on the circumstances. “We’ll start with the simplest case: If you’ve got two people on the call, and one of them plays music for the other, that’s a pretty good argument there for fair use. The case gets worse as you get to larger and longer media like watching an entire movie; the case gets worse as you raise the quality of the streaming, so as you switch to streaming it through the software itself rather than just picking it up with the microphone; the case gets worse as you include more people and as people are less related to each other–as you get beyond the immediate nuclear family into a larger group of friends.”
Grimmelman noted, however, that nothing about the current situation is normal, a fact that might affect how laws are interpreted and enforced. “The bigger issue is that there are very serious questions about this being an exceptional time, and people both being much more dependent upon media to keep them entertained and mentally healthy, and people not having the money that they would have had at previous times,” Grimmelman said.
Indeed, normal rules and laws everywhere are being relaxed or ignored; in Los Angeles, for example, parking enforcement is temporarily on hold, while restaurants are being allowed to sell takeout cocktails. Grimmelman provided some more relevant examples, such as the HathiTrust Digital Library’s new practice of “lending” digitized books to individuals who would normally have physical access to the libraries from which those books originated.
“I’m at Cornell, Cornell is in the HathiTrust, which means any book that HathiTrust has a digital copy of, that is in the Cornell library system, I can now check out digitally, since the Cornell libraries are closed,” the professor explained. Book publishers and writers’ unions might object, but examples like these are potential court cases for another day–though Grimmelman noted that it remains important for artists and creators to be compensated if we want to continue having new media and art to entertain us in the future.
For their parts, the platforms themselves may be liable in different ways from the users employing them for private media watch parties. “The issues facing Discord and other client platforms are very different from the issues facing people,” Grimmelman said. “I think people should generally make the uses that are appropriate for them and their settings, and platforms’ liability is something for platforms to think about. They’ll set their own policies, and users deal with it at that level.”
We contacted both Discord and Zoom for comment on this practice. Zoom, which has traditionally been focused on business functionality like video conference meetings, declined to comment, while Discord, generally a platform for gamers to organize and chat while they play online together, provided a statement through a spokesperson indicating that “streaming copyrighted content on Discord, without the proper rights, is expressly forbidden” and that they “comply with the DMCA [Digital Millennium Copyright Act] and respond promptly to any notices issued to us.”
We don’t know of any movie studios or streaming platforms taking action against private streamers at this time, but that’s not to say they won’t. For a potential worst case scenario, just take a look at the music industry’s practice of suing tens of thousands of individual users in the early 2000s over file sharing. Whether something similar happens in today’s climate depends on countless factors ranging from how widespread private streaming watch parties become, to how significant an impact these companies perceive the practice to be having on their bottom lines.
In the end, “it’s complicated,” Grimmelman reiterated. “I think for a temporary two-month deal, we shouldn’t stress too much about it. I think if we wind up switching to this and this becomes the new normal, then you really need to think about how copyright is re-negotiated to make sense in this kind of a world.”
For now, do what you need to in order to stay healthy–both physically, and mentally.
(Image credit: Andrew Brookes/Getty)
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