Streaming

Are streaming warning letters really becoming a reality?

After much debate following the RedTube debacle, is it really the case that streaming warming letters are becoming a reality? Will law firms succeed in claiming that streaming violates German copyright law? We answer these questions here.

Are streaming warning letters really becoming a reality? © MS-Fotodesign-Fotolia

Are streaming warning letters really becoming a reality? © MS-Fotodesign-Fotolia

[IMPORTANT UPDATE as of May 2017] The information below reflects the previously valid legal approach to streaming. As part of a landmark judgment of May 2017, the European Court of Justice ruled that streaming of works protected by copyright is illegal as long as the original source is clearly illegal (ECJ, Case C-527/15). You can find the details about this latest judgment on streaming in our blog article at

https://www.wbs-law.de/urheberrecht/eugh-zu-streaming-72808/

Therefore, the text below may not reflect the current legal situation [END OF UPDATE]

Streaming warning letters

For some time, we have seen an increase in the number of concerned internet users contacting us here at WILDE BEUGER SOLMECKE about so-called streaming warning letters. The warning letters are sent by the German law firm Waldorf Frommer and accuse recipients of having violated German copyright law by streaming files by using the software Popcorn Time.

According to a report by GGR Rechtsanwälte, users are now receiving warning letters accusing them of having streamed a film over the platform cuevana.tv.

Questions are now being asked whether internet users should fear a wave of streaming warning letters.

The answer to this question is: it depends on the streaming method!

Traditional streaming

German lawyer and partner at WILDE BEUGER SOLMECKE, Christian Solmecke, is of the opinion that ‘traditional streaming’ does not infringe German copyright law. “The risk of receiving a warning letter for traditional streaming is extremely low,” Mr Solmecke states.

P2P Network streaming

“Of course, it is also possible to stream files via P2P networks. In such cases, users are often unaware that they are making parts of the file received available to other internet users via a BitTorrent network. In this event, the circumstances are the same as file sharing. Anybody who distributes copyright-protected films or music over the internet violates German copyright law.”

Warning letters for streaming over cuevana.tv and Popcorn Time

WILDE BEUGER SOLMECKE has already been contacted by over a dozen people who have received warning letters for using the software Popcorn Time.

Christian Solmecke advises recipients to be cautious: “Not everything that is called streaming on the internet is streaming in the strictest sense. Individuals who use this software to allegedly stream films also upload the film automatically and without prior warning via BitTorrent. The result is the same as in classic file sharing cases.”

The same phenomenon can be seen with the new Popcorn Time Android app. People who ‘stream’ films using this app also automatically download and upload the copyright-protected file. Here too, users are not given any advance warning about the procedure used.

Mr Solmecke notes that the lack of warning is irrelevant for the qualification of the conduct as a copyright infringement, “Users are not able to defend against a streaming warning letter by arguing that they knew nothing about the download or upload. Under German copyright law, perpetrators of copyright infringements are held strictly liable, i.e. regardless of fault.”

As it is no problem to discover the IP addresses of BitTorrent users, warning letters can easily be sent for supposedly ‘streaming’ content.

Not comparable to RedTube streaming warning letters

The circumstances surrounding the streaming warning letters mentioned above cannot be compared to those of the illegal warning letters sent in the so-called ‘RedTube’ case. Here, the users streamed films in the traditional sense and therefore did not make the files available to third persons. The copyright-protected works were therefore not made publicly available as is the case with file sharing or streaming via torrents.

Mr Solmecke warns: “Those who use cuevana.tv or Popcorn Time in Germany to access copyright-protected files are clearly acting illegally. The risk of receiving a warning letter is high. Although it may not be made clear to users, the platform uses the same technology as file sharing websites.”

Extra care with football live streams

Even where football is shown on Sky Live, individuals should distinguish between the various types of streaming methods.

“Live streams which are received passively are legal. The same applies here as for other online streaming portals. A copy of the file is only created briefly which means that watching it is not considered to be a copyright infringement,” Christian Solmecke explains, “However, the position has not yet been clarified by the case law which means that users do not yet benefit from settled legal certainty.”

On the contrary, steaming copyright-protected content over P2P broadcasting services, such as Sopcast, is clearly illegal. As soon as a user streams content, the Sky Live signal and copyright-protected content is distributed to other users. Again, the same principle applies here as in file sharing cases. Here, a copyright infringement is committed which can lead to costly warning letters. Even criminal sanctions are possible.

Conclusion

Just because something is called streaming on the internet, it does not always mean streaming that the file will be streamed in the traditional sense. Where content is made available to third parties, the same principle applies as in file sharing cases and a copyright infringement is committed. This can lead to costly warning letters.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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