I “wouldn’t steal a car”, but is ‘illegal’ streaming really a crime? – Copyright infringement by Oliver Kavanagh

Are you committing a crime if you watch TV shows or films through ‘illegal’ streams or download copyrighted music or films from dodgy torrenting sites? You’ve probably seen the anti-piracy advert: “You wouldn’t steal a car… you wouldn’t steal a movie. Downloading pirated films is stealing. Stealing is against the law. Piracy. It’s a crime.” But is that, strictly speaking, true?

 

Is it theft?

Despite what that famous advert suggested: copyright ‘theft’ is not theft. Theft is when someone “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it” – or put simply: takes (not borrows) something that belongs to another person, dishonestly.

A case from 1985 (R v Lloyd [1985] 3 WLR 30) ruled that even the most obvious copyright ‘theft’ was not, within the terms of the law of England and Wales, theft. The Defendants were a group of film ‘pirates’ and a cinema projectionist, would lend them the film reels they needed to copy.  The Court of Appeal found that as they were only borrowing the films for a short period of time, then returning them to the cinema, there was no ‘intention to permanently deprive’. Even if theoretically the ‘film’ itself (rather than just the reel) had been taken for others to use, and even though the film company’s ‘commercial interests were grossly and adversely affected’, as there was no permanent ‘taking’ there was no theft.

As for handling, if copyrighted films can’t be ‘stolen’ in the first place, then there is no prospect at all of you as the consumer end-user being convicted of handling stolen goods.

 

Is it fraud?

The most common form of fraud is defined as making a ‘false representation’ (telling a lie) with the intention of making a gain for yourself or another or causing another a loss. A ‘gain’ is not necessarily a monetary gain. As stated above, copyright has been specifically defined as a form of property. So access to a film is probably a ‘gain’. However, in my opinion a prosecution of the end user would fail because there is no ‘false representation’: it is possible to obtain streams by searching for them on the internet without ever claiming you have a legal right to watch them.

The alternative offence of obtaining services dishonestly (s11 Fraud Act) only applies where payment would have been required by the provider. In the examples above, ‘illegal’ streaming sites do not charge visitors to watch their films etc and so there is no deception by not paying.

 

So if copyright infringement a crime at all?

The latest law dealing with ‘piracy’ is from 1988 (Copyright, Design and Patents Act 1988) but has been updated over time since then to reflect modern technology.  It sets out a wide definition of ‘copyright infringement’ which would surely include anything we might think of as ‘illegal’ streaming (although this is tempered by ‘fair-use’ exceptions). But although copyright infringement is a civil wrong, it is not necessarily a criminal one. This is an important difference because it means that simply infringing copyright would not lead to a prosecution, imprisonment or a criminal record, and would be punished by a financial penalty only.

However, the Act does create some specific criminal copyright infringement offences (in s107), which each have a maximum of 10 years’ imprisonment! These deal with ‘commercial’ copyright infringement. If Mr Lloyd (the projectionist from the 1985 case above) was around today he would be guilty of an offence under this Act. ‘Commercial’ doesn’t just mean running a piracy business for money – for example, in a case in 2011 (R v Nimley [2010] EWCA Crim 2752), a young man who videoed films on his phone in the cinema was right to plead guilty to ‘distributing’ those video recordings onto the web, unpaid, for ‘kudos’ amongst his friends and received a community order on appeal. But it is right to say that none of these offences relate to using or downloading streams for personal use. 

So overall, it seems that the end user, downloader or recipient of a stream or a torrent is not committing a criminal offence (but could be sued in the civil courts)! Also note that some things that might seem similar, like using someone else’s Netflix account or streaming a live TV broadcast without paying are an entirely different matter and would may well be a criminal offence.

 

Oliver Kavanagh