I will attempt to cover the legal aspects of streaming content via media players and applications, without hysterical claims or wildly inaccurate assumptions. Once we have covered what it means for the general users here in the UK, I will discuss ways you can mitigate your exposure. There are a couple of things you may want to consider doing to prevent your ISP, disclosing your browsing/viewing habits and/or blocking access to content you want to watch.

The summary is that streaming is illegal now, and whilst the chances of being caught or fined is quite small at this stage. I believe its just a matter of time before there is a heavier crackdown. The progressive changes in law and “backdoor” policies created under the guise of “terrorist threats” have eroded any privacy you had or thought you had. 

You can limit your chances of prosecution or being blocked by your ISP – which is explained a the end of the article

Streaming Legal or Not?

Well to be honest, its always been a grey area, however a ruling by the CJEU dating back to 2001, referred to in 2014 in ” The British Meltwater case”. This ruling in simple terms meant that several key areas needed to be satisfied to constitute a copyright infringement. This applied for streamers, using apps (Mobdro, Terrarium, WSS, etc) or media players (Kodi, SPMC etc) as the fact that any “storage” or “cache” was temporary and not downloaded and kept.  This one thing kept every user safe from prosecution or copyright trolls.

The judgement of the court states that: “Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.

Content Hosts, Torrents

The “temporary storage” element protected the end user, but not the hosters of copyright infringing material. Those of you unfamiliar with torrents, cannot fail to have missed the news headlines about The Pirate Bay, Popcorn Time and maybe even, YIFY. These are torrent hosters/providers and have been pursued doggedly and closed down by the authorities from various countries. Torrenting, uploading, etc IS illegal and was always the case. The “temporary storage” caveat provided by streaming for the last 16 years, has now been closed. Streaming now constitutes “breach of copyright”.

Now most have been wailing about leaving the EU being the reason for the change, well they’re wrong. This is a new UK law, The Digital Economy Act. Just to note, most EU law will be carried over and in place in the UK even after Brexit, due to the process of law changes being complex and slow moving.

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The Digital Economy Act

The full Bill is listed here should you wish to read it. The Digital Economy Act 2017, however we are concerned with the recent changes relating to streaming.

 10 Years For Streaming!

Honestly I cannot believe this has become viral in Kodi FB groups – didnt anyone ACTUALLY READ the bill? Ok, stupid question, clearly they didn’t. Yes streaming IS now illegal, but it is a civil offence not a criminal one. Your local plod will not be breaking down your door, but that doesn’t mean you should ignore this change in the law.

Kieron Sharp, the CEO of FACT , told Mirror Tech that the copyright measures included in the bill are primarily targeted at those committing a serious offence. Anyone “making a business” out of selling illegal content could potentially face up to ten years rather than two.

Selling “Loaded” Media Players

The tabloids refer to these as Kodi boxes, but this is just a device capable of running a media player, like SPMC or the dozens of other forks now circulating. Your browser on your phone or PC can access almost all the content provided by Kodi, but is not illegal, neither is Kodi or SPMC. You can use these players to access legal content.

So its about any application or third party add-on (those nice ones we all add to our Kodi!) that gives access to material online that would constitute “premium” or copyright protected content. That means, live TV (not free to air), Movies and TV boxsets or “on-demand” content, now constitute “a breach of copyright holders rights”. Those copyright holders can now pursue you, if they choose.

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Enforcing Copyright

In many ways, I would prefer it to be a criminal offence as our police force is busy with many more important matters than protecting the fat wallets of mega corporate entities. Therefor the chance of prosecution would be minuscule, adding a few measures to hide your activity would probably render any chance of prosecution non-existent without changes to the law.

However, streaming content is illegal, albeit a civil offence. This requires private companies taking action against private individuals. This for me is much more sinister, getting “knicked” off the local plod and facing a judge, gives me rights of representation and the chance to plead with a busy judge to be lenient. This is not the case with private prosecutions in that you will be facing highly specialised legal bods, probably paid fat salaries, to nail you. This has already happened in Canada  – having spoken with Vincent about the case for box sellers, in his words, “the judge dismissed any and all arguments and we were guilty without being able to plead any mitigation”.

The Sinister Issues

The sinister side of this that I think is being missed is that UK ISP’s & Phone Companies now retain all your “meta” data or browsing history. Laws brought in by Theresa May as then Home Secretary,  with amendments added over a period of years to further track everything you do.

Internet service providers and mobile phone companies to maintain records of each user’s internet browsing activity (including social media), email correspondence, voice calls, internet gaming, and mobile phone messaging services and store the records for 12 months.

Communications Data Bill, November 2015 adds to the Retention of email and telephone contact data for this time as already required by the Data Retention Regulations 2014

Confused? Let me explain why this is very important in considering what you should or shouldn’t do in terms of hiding your activity. If you haven’t heard of copyright trolls, they’re low life companies that look for easy ways to make money from unsuspecting members of the public. They have in the past setup “torrent honey pots” to catch noob torrent users out. To get the torrent, you have to reveal your IP address and this reveals who your ISP is. They could then apply to the ISP for your info and then send you a threatening email or letter.

NOTE: I have always advocated using a VPN to torrent for the above reasons, using a private torrent group is also advised. This may not protect your fully if they are compromised or subject to a seizure by the authorities. YOU are responsible for protecting yourself. Experienced users will know this – but new comers – THINK!

Legitimised Copyright Trolls

Now these copyright trolls were a bit dubious before and there were ways to deal with them, however, their existence has now been legitimised by this change in the law. They know your ISP and mobile phone provider has a legal obligation to store all your communications, browsing history, messages, social media activity etc. I want to state, this is my opinion and that of a few others i have discussed this with. I am not legally qualified, so take this as you will. I do have experience on being on the wrong end of the legal system however and experienced the lack of protection a private prosecution means in reality.

I hope this doesn’t happen, but all the signs are that its absolutely feasible. The ISP’s have a record, the copyright trolls and to be honest, now its law, “legitimate” law firms may take up the mantle (remember “Injury at Work” or “PPI” ?) and become specialists to pursue “illegal streamers” with a view to leverage an income stream from the fines. Not realistic? Ok, how many movies do you watch in year rather than going to the cinema? Add your family members… now what about all the football you watch without paying for Sky? The “theorectical loss of revenue” soon adds up, remember they can look back over a WHOLE YEAR but should not exceed £50,000!

The fines therefore have the potential to be large enough to attract the “copyright trolls” and larger corporates seeking to “set an example” to other users with some headline cases. The new laws mean all the data they need to secure a conviction are there for them too, I cant see BT or SKY being reluctant to cough up the infringers on their networks, can you?

How to Protect Yourself

What you do now is personal choice and what you consider the risk might be to your bank balance. I say bank balance as end users are unlikely to face custodial sentences. Those that may face prison are the large scale sellers, hosters and IPTV providers. I expect that will be the key focus. If you cut off the supply, the users like us will have nothing to watch!

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Private DNS

Whenever you make a request on the web using a url, like www.best-kodi-guides.eu – you use a DNS, Domain Name Service to find out where that server is. The DNS looks up the url, and then is returned an IP address (which looks like this 234.121.34.128), this allows you to then connect to the web server and get access to the website. As you can see, remembering the url is much easier than the IP address!

So in simple terms the DNS is key to accessing websites, which is why the laws we mentioned earlier use this to track your activity. However, if we use a private or public DNS service that do NOT record your activity, we can unlock any DNS censorship (how your ISP stops you accessing anything they consider unnecessary or are forced by law to block). You may also find that this speeds up your general browsing on your pc or tablet etc.

I wrote sometime ago about using alternate DNS services to your ISP provided one. The private services are generally faster too, and many offer “smart services” to unblock sources for your streaming apps or media players. I have used Unblockr (add-on for Kodi) for sometime now on my Kodi and find it cheap and effective. The added bonus is that it unlocks a lot more sources – but stops my ISP knowing what I watch too.

I will be making more posts about DNS and how to change this on all your devices – but in the meantime you might want to try these free public options if you know how;

Provider Primary DNS Server Secondary DNS Server
Google3 8.8.8.8 8.8.4.4
DNS.WATCH4 84.200.69.80 84.200.70.40
Comodo Secure DNS 8.26.56.26 8.20.247.20
OpenDNS Home5 208.67.222.222 208.67.220.220

Using A VPN

VPN is an acronym for Virtual Private Network, is a method to encrypt your web traffic so it cannot (legally) be accessed. This also uses the VPN providers DNS, bypassing your ISP or any private service you had in place. Now let me explain, I have fulltime Unblockr DNS service in place to prevent any tracking by my ISP. However I activate a VPN on my phone, laptop, FireTV box and my Nvidia Sheild. This was a personal choice before the law changed, but I believe its essential now to avoid the possibility of copyright trolls “trying it on” to make money from the situation. Though the bills provides an upper limit of £50,000. Warms the cockles of my heart !

I want to quickly refer you to some extra reading  Why free vpns can be dangerous and why free vpns can be risky. I know this might seem tedious but this is a complex area and I want to give you all the info so you are informed and can make your own judgements.

I use a company called Private Internet Access, they have served me well thus far. Do i believe they will not give me up in heartbeat if I was involved in criminal activity? No. Streaming isnt a criminal offence, so we will need a legal precedent to be set to see if companies within the “Five Eyes” would cooperate at this level, which is fairly minor low level stuff in truth.

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Hidden Benefits of DNS & VPN

It is odd that driving streamers to look at their personal information and how its recorded and could be used against them, will show them the extent to which govts can monitor your activity. This will give you added benefits, of uncensored views of the internet, as almost all UK ISP’s censor their DNS tables. Use of the 3rd party and private dns services are invariably faster ( just google faster browsing and look at the results telling you to change your dns settings!).

Changing your DNS will give you more stream sources – stop the spies and get more streams, seems like a win-win?

Users who additionally utilise VPN’s from reputable companies will see little reduction in speeds. I don’t recommend putting vpn on your households only router, this will create a bottleneck and also it will be asking a lot of the router hardware. If you do want to do this you will need to invest in a good retail unit.

I prefer to use VPN apps on my devices individually, this mitigates any speed loss per device rather than getting 6 or 7 devices running through 1 vpn connection on the router. It also gives me flexibility with settings and which country to connect to.

Finally…

I want to emphasise that at this time, the chances of individual prosecutions is quite small, but not impossible. The ability for the Govt and its organisations to track and store you data is something you should be aware and take action against, regardless of the streaming implications. However, lets be clear, no individuals will be going to prison for streaming, at least not yet!  
Reference Links
Organisations With  Access To  Stored Data;
  • Metropolitan police force
  • City of London police force
  • Police forces maintained under section 2 of the Police Act 1996
  • Police Service of Scotland
  • Police Service of Northern Ireland
  • British Transport Police
  • Ministry of Defence Police
  • Royal Navy Police
  • Royal Military Police
  • Royal Air Force Police
  • Security Service
  • Secret Intelligence Service
  • GCHQ
  • Ministry of Defence
  • Department of Health
  • Home Office
  • Ministry of Justice
  • National Crime Agency
  • HM Revenue & Customs
  • Department for Transport
  • Department for Work and Pensions
  • NHS trusts and foundation trusts in England that provide ambulance services
  • Common Services Agency for the Scottish Health Service
  • Competition and Markets Authority
  • Criminal Cases Review Commission
  • Department for Communities in Northern Ireland
  • Department for the Economy in Northern Ireland
  • Department of Justice in Northern Ireland
  • Financial Conduct Authority
  • Fire and rescue authorities under the Fire and Rescue Services Act 2004
  • Food Standards Agency
  • Food Standards Scotland
  • Gambling Commission
  • Gangmasters and Labour Abuse Authority
  • Health and Safety Executive
  • Independent Police Complaints Commissioner
  • Information Commissioner
  • NHS Business Services Authority
  • Northern Ireland Ambulance Service Health and Social Care Trust
  • Northern Ireland Fire and Rescue Service Board
  • Northern Ireland Health and Social Care Regional Business Services Organisation
  • Office of Communications
  • Office of the Police Ombudsman for Northern Ireland
  • Police Investigations and Review Commissioner
  • Scottish Ambulance Service Board
  • Scottish Criminal Cases Review Commission
  • Serious Fraud Office
  • Welsh Ambulance Services National Health Service Trust