Media Free-For-All // Online Streams As Fair Use (revised paper)

-- By ChrisWoller - 14 Jan 2015

This paper advocates for a more liberal interpretation of the fair use doctrine in copyright during certain circumstances. Specifically, I argue that legally-dubious online streaming websites that, without license from the copyright holders, allow individuals to watch movies and television shows of their choice on demand, for free, should be considered fair use under §107 of the Copyright Act.

Background

Individuals who have Internet access, but have otherwise limited financial means (and can’t afford a television or a cable subscription), but who nonetheless frequently consume television and movies (such as students and young adults working a lower-income job) are likely familiar with the ways to watch their media of choice online, on-demand. Netflix and Hulu are among the popular, legitimate ways to do this (legitimate meaning that the website has licenses for the shows from the copyright owners, or are the copyright owners themselves), and there are various other sites such as HBOGo, Crackle, and etc.

However, there are numerous other websites that host copies of various television shows and movies without having a license to do so. These websites are, in general, easily found after twenty minutes of searching using rudimentary Google-strings, such as “watch (show title) online free”. Individuals might seek out these websites because they do not have a subscription to a legitimate service, or because the particular show they are after might is not available on a legitimate platform the individual has access to. Even though some legitimate platforms have vast programming libraries, the sheer amount extant media, and existence of exclusive licenses among competing platforms, means that no one platform can always satisfy an active viewer’s programming desires. Where there is a will, there is a way, however, and individuals can, more-than-likely, find their show on an illegitimate website when it is not available on one of the platforms they subscribe to.

These illegitimate websites usually have a simple layout: a user searches for their show of choice, and are then presented with several ostensible links to view the media (though often many of the links do not work). From there it is only a matter of trial and error until a working link is found.

Implicated Copyright Doctrine

While viewing one of these illegitimate streams might not be illegal for the user to do, the host of the content is likely violating at least some of the exclusive §106 rights, such as reproduction, distribution and public performance. It can be argued that the hosts of the streams are reproducing the copyrighted media by creating the viewable link, and that they are distributing the copyrighted work by uploading it onto a mass-consumable website. There is also a chance that public performance rights are violated, in a manner analogous to the Supreme Court’s Aereo decision. Additionally, §109 first-sale doctrine (which insulate individuals from §106 distribution claims when they re-sell a lawfully acquired copy of copyrighted material) only can protect the hosts against distribution infringement.

Advocating Fair Use

In copyright law, once infringement has been found, a defendant can turn to §107 of the Copyright Act to assert an affirmative “fair use” defense. A finding of fair use absolves the unauthorized use of the copyrighted material from liability. Per §107, there are four criteria to a fair use analysis – purpose, nature of work, quantity and market effects. In practice, however, the first and fourth factors are the only ones that have weight in the analysis.

The “purpose” prong is an inquiry into whether or not the use is transformative, i.e. the use adds something new, with further purpose or different character than the original, or if it instead is intended to act as a replacement for the original work. The market effect prong looks at whether or not the misappropriated copy will have negative effects on the market for the original. It is important to note that courts continually stress the fact no one factor is dispositive. I argue that hosting of unlicensed streams should be considered fair use, because it is sufficiently transformative, and does not have significant negative market effects.

These streams do not, on their surface, seem in the least bit transformative, as they are literally copies of the original works. However, these streams are not intended to replace the experience of viewing the show in theatres or during live television. Instead, they exist in order to give access to the shows to individuals who could not otherwise view it. This is certainly a different purpose than the existence of the original works, which is to convey the content of the media (plot, videography, etc.) and make a profit for its creators. In this sense, the streams are at least slightly transformative, though the argument is admittedly not terribly strong.

The market effects analysis works much more towards a finding of fair use, however. It is easy to assume that these streams have a negative effect on the market for the original copyrighted work. After all, the hosts are providing, free of charge, something that the user would have to otherwise purchase independently (on blue-ray or the iTunes store, for example), or purchase a subscription to a legitimate service in order to view. Not so fast, however -- it is reasonable to infer that users of illegitimate websites, who are willing to risk potential lawsuit susceptibility, exposure to malware and pornography (which these sites are lousy with) and terrible viewing quality, simply do not have the means (or perhaps the desire) to otherwise view the shows. The streams do not have a negative market effect, then, as these users would rather choose to not view the media if their only option was to pay for it. Additionally, if a show is already licensed to a legitimate platform, these streams are not harming the potential market for show licensing. Finally, these streams might actually have a positive market effect, as they increase the overall viewership of the media, which results in a greater market for merchandise, more website hits, and increased pop-culture visibility and relevance.