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I was wondering whether watching a video that was uploaded without permission from the copyright holder was illegal. Also...

  1. Which country’s laws apply if a lawsuit were to arise? For example, if a person in Country A accessed content owned by a company in Country B using software from Country C, which country would the person be legally liable to, in case of a lawsuit?
  2. Does it make a difference whether the site is legal or illegal? It seems reasonable to expect pirated content on an illegal site, but on a site like YouTube, it would be difficult for users to know whether the copyright holder is okay with the file being uploaded.
  3. YouTube actually runs on a download system, storing the file in the browser cache. How would that affect legal complications?
  4. What is the expected maximum penalty for streaming privately? I read that it was $750 per clip, but I am not sure if this is correct.
  5. How much of a video clip could be considered Fair Use, approximately? Clearly, taking a few minutes of a movie is generally considered Fair Use, but a full movie being uploaded is probably not. Where is the threshold approximately?
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    See law.meta.stackexchange.com/questions/1267/… on meta for a discussion about this question. May 21 at 2:38
  • "Which country's laws apply?" Every country that thinks its laws apply. Countries that can't get hold of you are at a disadvantage.
    – gnasher729
    May 21 at 13:09
  • @gnasher729 I do not think that streaming or downloading on a small scale will end up in a criminal court, but if it ends up in a civil court, which country could take the case? May 21 at 16:32
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It is not copyright infringement to read or watch an unauthorized copy of a written or audio-visual work under US copyright law. This is not even slightly ambiguous. Damages and fair use are somewhat more complex.

Infringement

In the the exclusive rights that a copyright holder has are given by 17 USC 106 as:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Note that the right to read or watch, or to authorize or permit reading or watching, a work is not one of those rights. To distribute copies is a right under point 3, and to perform the work publicly is under point 4. Thus to stream the work is probably infringement (unless covered by safe harbor) and to post to a streaming service likewise is. But to read or watch is not infringement.

17 USC 501 (infringement) provides that:

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

Again note that this does not include a person who reads or watches an unauthorized (pirated) copy.

Note, by the way, that infringing copyright is not, in most cases, "illegal" in the sense that it is a crime. It is a tort, which gives the copyright holder, or the holder of one of the exclusive rights, grounds to sue for damages or an injunction to stop the infringing activity. But except for the limited subset of cases covered in 17 USC 506 it is not a crime. It might be said to be unlawful. As a practical matter, only a small subset of the cases in theory criminal under section 506 are prosecuted. In general only bulk reproduction or distribution on a commercial basis of infringing copies will be criminally prosecuted in the US.

Damages

If infringement is proved in a suit, the copyright holder will be rewarded damages. These can include the holder's actual losses, plus the infringer's profits, if any. Or statutory damages may be available, which can be as low as $750, or as high as $30,000 as the court may find just. In the case of wilful infringement, statutory damages can be as high as $150,000. That is per work infringed, not per act of infringement. This is spelled out in 17 USC 504.In many cases legal expenses and lawyer's fees may also be awarded under 17 USC 505.

Fair Use

There is no bright line separating fair use from infringement, and the amount of a work that is used is only one factor that must be considered.

In the case of Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) the use of about 300 words from a 500 -page book was held not to be fair use, while the use of an entire feature film for teaching purposes can be a fair muse.

Fair use is spelled out in 17 USC 107. The four fgactors which must be considerd are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

No one of these factors is primary in every case, and the court may consider additional factors as well. Length of an excerpt used goes only to factor 3. US courts have persistently declined to fix rules on how much copying is or is not permitted under a claim of fair use. The idea that so many seconds is always allowed and so many is always infringement is a myth with no legal validity.

Note that fair use is a very specifically US legal concept. other couturiers have somewhat similar concepts, but the rules are quite different, and generally significantly narrower.

Venue

The question asks:

Which country’s laws apply if a lawsuit were to arise? For example, if a person in Country A accessed content owned by a company in Country B using software from Country C, which country would the person be legally liable to, in case of a lawsuit?

The first think to remember is, an infringer is not liable to a country, but to the copyright holder. The holder may possibly sue in any of several countries, or perhaps even in all of them.

In the example the holder could almost surely sue in country A and/or country B, depending on the details of the laws of each. Whether the holder could sue in country C, and could also sue the maker or distributor of the software, will depend on the laws of C, and on how the software works, and on how it is marketed and normally used. If the sole or primary use is to facilitate infringement, or if it is marketed for that purpose, the case against the software maker is stronger than if there are many legitimate uses. But the factual details will matter a lot.

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    17 USC 106 point 1 does mention making copies. If you read or watch something unauthorized, you may be making a copy of it on the device you are using. This would probably cover direct downloads (downloading a file onto your device), so downloading a pirated book and reading it would probably violate the rights of the copyright holder, but I am not sure if it would cover streaming or downloading into a browser cache (which is how YouTube operates) or whether the site's legality would affect liability for the user. May 21 at 4:18
  • @joseph-parsons My understanding: If I invite 10 friends to watch a movie, I set up my TV, start the streaming and leave the room, I commit copyright infringement even though I didn't actually watch the movie, while my ten friends who watched the movie haven't done anything illegal. Or if I download a movie illegally onto my computer, that's the infringement done. If I watch it ten times in a row next year, that's no (further) infringement.
    – gnasher729
    May 21 at 13:35
  • @joseph-parsons The sites legality shouldn't matter, but whether you knew or should have known that it was illegal. I get a message: "I just uploaded this movie to youtube, make sure you download it before it gets removed", then no matter how legal youtube is, my download is illegal and I knew it.
    – gnasher729
    May 21 at 13:37
  • @gnasher729 For the first comment, It certainly seems difficult to justify why in this scenario, your friends would be liable, since they did not make an unauthorized copy. Downloading is making an unauthorized copy. However, why would you be liable if you start the stream? Is it because it is a public performance or because it is making a copy? If it is the former, then if you both start the stream and watch it alone (or have nobody watch it), then it would not be a public performance. May 21 at 16:20
  • @gnasher729 For the second comment, I guess that makes sense, although I don't know what the threshold would be for knowledge that something is illegal. For example, if the entire Monty Python and the Holy Grail movie has been available on YouTube for two years for free from someone who does not own the rights to the movie (this is actually the case), it is difficult to know whether this is legal. May 21 at 16:24

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