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Streaming warning: Kino.to, Redtube & Co. - are streaming film portals legal or illegal?

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On cinema portals and services such as Popcorn Time and kinox.to, users can watch films free of charge from home just a few days after they open in cinemas. The question arises as to whether streaming portals are legal or illegal, whether users can also be legally prosecuted for watching films, series or football games. In contrast to file sharing, the content is not even downloaded to the user's computer when streaming. The ECJ has now issued a current ruling on this.


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Our top article explains whether it is legally possible to use streaming cinema portals.

How does streaming work?
»Live streaming
»On-Demand Streaming
»Intermediate storage (cache)

The legal situation with streaming
“Private copy
“Illegal submission
»New ECJ ruling on streaming

Warning about streaming and popcorn time
»The platform operator
" The users
“Warning about Popcorn Time
" Conclusion

1. How does the streaming work?

Most users of streaming portals do not know the technical process. You select the film you want and wait for the player to start. But what actually happens technically with portals like kinox.to?

Live streaming

There are different types of streams, for example on-demand streams or live streams. In the case of live streams, such as the broadcast of the soccer World Cup on ARD and ZDF, the game can be viewed directly on the TV broadcaster's website, as if you were sitting in front of the television at home. With live streaming, the data is exchanged independently of the server.

On-demand streaming

The opposite of live streaming is on-demand streaming. In contrast to live streaming, the user has the option of fast-forwarding or rewinding the video. So the user's action is not just watching movies. With on-demand streaming, such as on YouTube, media libraries of private and public broadcasters or on free film portals, after clicking on the film, the data packets are sent from the provider's server to the user's PC using the Internet protocol.

How to fend off a file-sharing warning:

Have you received a warning about file sharing? Get your free initial assessment from the lawyer on 0221/400 675 577 (24h / nationwide) or by email: [email protected]

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These data packages, which contain a highly compressed version of the film, are stored on the user's computer. This storage usually takes place in the intermediate memory, also known as the cache, of the receiving device. In order to play the film or to rewind it, the player must access the cached data.

Intermediate storage in the cache

During this time, the user is shown a charging process. Because an immediate start of the film at the beginning of the data transfer would mean a delayed playback of the film. Therefore, the first few seconds of the movie are completely cached. This is called buffering. Only then does the film start without delay in the user's internet browser via the flash player, which is preinstalled on most PCs. Since the film does not only consist of the first few seconds, the remaining parts of the film are downloaded successively while the user is watching the film. At the latest at the end of the streaming process, the entire cinematic work is stored in the cache of the user PC.

How long this data is stored in the cache depends on the settings in the Internet browser. There is a possibility that the cache will be emptied each time the Internet browser is closed. Then the caching takes place only as long as the internet browser is open for the streaming process. However, settings can also be made in which the cache is only emptied after a certain amount of data has been reached. In this case, the film is cached until the cache is automatically emptied or this is done by the user.

2. What is the legal situation with regard to streaming?

Against the background that the film is temporarily stored in the cache, the question arises: Is it legal or not to watch movies on streaming portals in Germany? As soon as the streaming portal operator makes the films available to users on his portal, he avails himself of the right to make them publicly available from § 19a UrhG. However, only the author has this right (Section 15, Paragraph 2, Clause 2, No. 2 UrhG). However, this only affects the operator of the streaming portals, not the users.

Do they violate applicable law by using the streaming services?

If you take a closer look at the technical process, you will notice that copies of the film (so-called duplicates) are stored in the cache. However, according to Section 16 (1) UrhG, the author has the right to reproduce works. It does not matter whether the film is created temporarily or permanently. Accordingly, every user of such movie portals violates the copyright of the author.

If the legal situation were so simple, however, there would hardly be such a clash of opinions when it comes to the question of whether these streaming portals are legal or not. Hence the big BUT:

The right of private copying

In recent years, it has been made clear through case law that reproductions for private use may be made. This is also stipulated in the law, Section 53 (1) sentence 1 UrhG.

"Individual reproductions of a work by a natural person for private use on any medium are permitted, provided that they are neither directly nor indirectly used for commercial purposes, unless an obviously illegally produced or publicly accessible template is used for the reproduction."

However, the restriction applies that the copy is not based on an obviously illegally produced or publicly accessible template. As already clarified, the portal operator is violating the law. Therefore, duplication in the user's cache also constitutes a copyright infringement.

Obviously illegally produced template?

But what does "obviously illegally manufactured" actually mean?
There is no general definition for this. But if you can watch a current movie or a blockbuster that has just appeared on DVD for free via such a portal, you should be aware that this is an obviously illegally produced template. This is also the case with TV series or older films. The unlawfulness of providing these films and series free of charge should be clear to the user, because other - legal - on-demand providers charge a fee for viewing them.

The question of the legality of free film streaming portals has not yet been finally clarified here either. Another BUT follows. Because § 44a UrhG must also be observed.

Temporary acts of reproduction that are volatile or accompanying and represent an integral and essential part of a technical process and the sole purpose of which is
1. a transmission in a network between third parties through an intermediary or
2. lawful use
of a work or other subject matter of protection and which have no independent economic significance. "

According to the unanimous opinion and the opinion of the legislator, the copies are only cached files. So they are fleeting and accompanying. Accordingly, the use of free movie streaming portals is permitted and consequently legal.

New ECJ ruling on streaming

In a recent ruling, the ECJ ruled that simply viewing obviously illegal content such as current movies, series or sporting events constitutes a copyright infringement. Users of streaming platforms can no longer assume that only the providers of the streaming services can be held legally responsible.

It remains to be seen whether this ruling will lead to a wave of warnings from streaming users. More information on the ECJ streaming judgment can be found here:

New ECJ ruling: Even watching illegal streams is illegal

3. Warnings for streaming?

Since the legal situation has so far not been clear, there have been repeated warnings in the area of ​​streaming recently. But here you have to distinguish between two cases:

Warnings against the platform operator

The legal situation is often clear here. If the operators of streaming platforms put copyrighted content (videos, films, music) online, you need the consent of the rights holder. So the author or the rights user (record companies, film studios, etc.). If you have not obtained this consent, for example because you do not want to pay the resulting license fees, the operators of streaming platforms are violating copyright law and may be warned. At the same time, operating such sites can also constitute a criminal offense.

Warnings against users of streaming portals

The situation is different with the users of such portals. The user does not take any action on the "work", i.e. the film or the song. He just retrieves the titles. There is now a legal dispute about whether caching is a copyright-relevant act for the user. This view is represented again and again by the warning lawyers and the rights holders.

The courts have ruled - especially in connection with the numerous Redtube warnings in 2013 - in most cases that the mere retrieval of content via streaming does not constitute a copyright infringement.

The ECJ is different now in the above-mentioned judgment. Users are also committing a violation of the law when they access illegal streams. As of this, a new wave of warnings from the rights holder follows, but one cannot say at the moment.

Warnings for the use of "Popcorn Time"?

There are currently many providers on the market for whom it is not clear whether it is file sharing or streaming. Popcorn Time currently has the role of the “market leader” in this area. Many users probably think that it is "just" a streaming platform. In truth, Popcorn Time is about file sharing and P2P. But the legal situation looks different again.

 

Practical tips for streaming online:

1. Up to now, there has been hardly any reliable jurisprudence by German courts on the question of criminal liability or violation of the law by users of streaming portals.

2. The ECJ has currently ruled that users also commit a violation of the law when accessing illegal streams. But one has to wait and see whether this leads to warnings in Germany and how the courts will actually decide in such cases.

3. There are now numerous legal portals on which Internet users can watch films without running the risk of being warned. You can find a good overview of legal streaming portals with a comparison of prices and available films, for example, on the trusted website at https://trusted.de/video-on-demand

The https://video-on-demand.vergleich.org also offers comprehensive information and tests on the various providers of video on demand.

 


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