Meet Popcorn Time, the Napster for the streaming age. This is the Netflix of unlicensed P2P file-sharing sites, bringing HD movies to the masses for free, at the click of a button, no waiting required. The service is even entirely cross-platform, with versions for Linux, Windows and Mac, and it does not have ads, subscription fees or spyware, it is entirely non-commercial in nature. It seems too good to be true, and one would expect it to be brought down as soon as you can say “lawsuit”, but the developers seem to be unconcerned about potential legal liabilities. One of the developers, interviewed by Torrentfreak, stated:
“We don’t expect legal issues. We don’t host anything, and none of the developers makes any money. There are no ads, no premium accounts, and no subscription fees or anything like that. It’s an experiment to learn and share […] We hate that we don’t have the chance to watch some movies at home. Popcorn Time is an experiment to show that you can do something better for the users, and that you can do it with BitTorrent”.
This is a bold claim, but is it accurate from a legal standpoint?
Firstly, we need to establish jurisdiction. Popcorn Time’s domain is a .me domain (the country domain for Montenegro), but interestingly, it was registered by Name.com, a US-based registrar. This might open them to US jurisdiction through a domain name seizure enacted by the Immigration and Customs Enforcement (ICE). The website itself would also appear to be hosted in the United States, as both an IP lookup and a traceroute to the servers end in US service providers.
If this is the case, then the days might be counted for Popcorn Time. While the fact that the site does not have ads, premium accounts, and in no way seems to promote illicit file sharing explicitly might have a bearing on the award of damages and it also might reduce their criminal and civil liabilities, the question is whether what they are doing would be considered copyright infringement. There appears to be a myth in online circles that if you do not host any content then you will not infringe copyright. This is not precisely true, as making the work available to the public without the authorisation of the owner will amount to copyright infringement.
In the case of Popcorn Time, it seems clear that the service is operating beyond the mere provision of a link, as the interface and client are instrumental in allowing the user to be able to stream the file from other sources. I am not entirely sure about the technology being used by Popcorn Time, but it would appear that it must require some sort of centralisation of information, such as having a database of trackers, at the very least.
It will be interesting to follow future developments, will the film industry descend with righteous fury against the site?
1 Comment
Hat 4 Rain · March 21, 2014 at 9:30 am
> “…will the film industry descend with righteous fury against the site?”
Looks like the major film studios (can we please stop calling them the “film industry”?) already did: Popcorn Time’s website now features a farewell message, ending with this:
> “Our experiment has put us at the doors of endless debates about piracy
and copyright, legal threats and the shady machinery that makes us feel
in danger for doing what we love. And that’s not a battle we want a
place in.”
Incidentally, it’s not true that under US law, “making the work available to the public without the authorization of the owner will amount to copyright infringement.” Professor Menell’s article, which you cite to, is an advocacy piece, not a summary of the law, and indeed concedes that there is substantial disagreement in the courts on the question. The US Copyright Act, by its plain language, offers no support for any such “making available” right; for one thing, the right of distribution upon which Menell would base this made-up right applies only to the distribution of “material copies,” a requirement that obviously cannot be met by merely “making the work available to the public.”