Given the recent furore surrounding the first ever warning letters accusing internet users of breaching copyright through streaming, we answer some of the most frequently asked questions on the legality of streaming under German copyright law.
What is streaming and what is the legal position?
Streaming involves data being sent from a server and which can be played before the complete transfer has taken place. If the data is a video, for example, internet users can begin to watch the video while it is being transferred.
In contrast to the more traditional file sharing websites, users who stream content do not make it publicly available. Making copyright-protected material publicly available is a major infringement of German copyright law that does not apply to streaming.
Nevertheless, it is currently being debated by legal experts whether watching a copyright-protect film via streaming is an illegal act under copyright.
If an internet user does make the film publicly available, then they infringe copyright, as this right is reserved for the copyright holder under § 19a German Copyright Act (Urheberrechtsgesetz, UrhG).
Is it illegal to stream films to your computer?
The difference between downloading a film and streaming a film is that during streaming the internet user does not create a permanent copy of the film. It is the reproduction of a copyright-protected work that is illegal under German copyright law. Here there is no reproduction. Rather the user simply watches the film.
Is the buffer not a temporary copy?
When streaming content, fragments of it are temporarily stored in a special part of the hard drive (cache). This creates a small buffer of just a few seconds which allows the film to be played smoothly and prevents it from stuttering if, for example, the internet connection reduces in strength whilst the content is being played.
Some legal experts believe that these small fragments of saved data represent a copyright infringement.
We disagree with this opinion for the following reasons:
1. Right to make a private copy
Under § 53 UrhG, there is a right to make private copies of copyright-protected material, provided the source has not been disseminated in a clearly illegal manner.
If a user is immediately aware that the dissemination has not be agreed to by the copyright holder, the right to make a copy of the work for private purposes extinguishes.
In the case of many internet platforms, it can be difficult for internet users to establish whether the content has been placed there illegally, without them needing to conduct further research. The illegality of the dissemination must be abundantly clear. If not, no copyright infringement is committed.
This pre-requisite applies only under copyright law and not to other areas of law. While under German law the streaming platform, Redtube, could be considered to be disseminating illegal pornographic content, this is irrelevant for the application of copyright law. In other aspects, the platform complies with US law and it is therefore not abundantly clear that the dissemination of the content breaches copyright.
2. Temporary copy
Furthermore, under § 44a German Copyright Act copyright-protected material can be reproduced if the copy is transient and is an integral and necessary technical measure.
Copies created during streaming are only temporarily stored for just a few seconds in the buffer (RAM) and are often deleted moments later.
They are also a necessary and integral technical measure of the streaming process. Their purpose is to allow for the smooth playback of films or music.
Such copies are therefore protected under § 44a.
Conclusion
In our opinion, streaming is not illegal under German copyright law. It is covered by both the right to make a private copy under § 53 UrhG and the technical measures permitted under § 44a UrhG.
If you have received a streaming warning letter, we can help defend you. Contact our expert team of German lawyers on (Beratung bundesweit) for an initial free assessment.
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