By David Hejmanowski
March 13, 2014
“We don’t expect legal issues. We don’t host anything and none of the developers make any money.”
— “Sebastian,” Popcorn time developer
“We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”
— Justice David Souter, MGM Studios v. Grokster
I’ll admit that I have really odd taste in movies. Just last week I caused a stir at work when I mentioned that I hadn’t seen a superhero movie in a movie theater since Michael Keaton was Batman. If I’m at the theater it’s probably a kids movie (“Frozen” was excellent), sci-fi/fantasy (can’t wait for the next Hobbit film) or even a disaster flick. (I’m moderately ashamed to admit that I own a DVD copy of “The Towering Inferno.” But where else are you going to see Fred Astaire and O.J. Simpson in the same film?)
I’m equally as picky about where I watch movies. You might catch me at home on my couch or streaming on Netflix, but if I’m at a movie theater it almost always means that I’m on East Winter Street at The Strand. I’ve said it before, but we’re insanely lucky to have The Strand in town. You can probably count on one hand the number of small towns that can boast a 100 year old, continuous operation movie theater that has survived the conversion to all-digital projection. The Strand also boasts the best movie theater popcorn I have eaten anywhere. Ever.
But what if you missed a movie that you wanted to see while it was at The Strand? What if it’s not coming to Netflix? You could always go and rent it or maybe even buy it. But that smacks of effort. If only you could just download those movies for free over your tablet or smart phone then you could steal view them without even having to get off the couch.
Last week news began to spread about a new video streaming service called “Popcorn Time.” Using a template that operates a lot like Netflix, Popcorn Time is an app that uses BitTorrent to instantly — and illegally — stream movies. These movies include several that are still in theaters and not yet available on DVD.
Popcorn Time’s creator, a Brazilian web designer identified only as “Sebastian,” told interviewers over the weekend that he did not expect any trouble with the major studios and would be surprised if he faced any legal action over Popcorn Time’s creation. After all, he said, the app doesn’t actually host or control the data, doesn’t make any money, doesn’t have ads and doesn’t charge a subscription service. Apparently, he has never heard of what happened to little thing called “Grokster.”
Grokster was a peer-to-peer file sharing service, over which users could share music, movies and other files and forms of media. In 2006 a consortium of entertainment companies, led by MGM, sued Grokster claiming that although Grokster didn’t host the files and didn’t directly share the data, their act of providing a service that they knew was used largely to violate copyright law was, itself, a violation of copyright law. Grokster won at both the federal trial court and the federal appeals court levels.
The entertainment industry appealed and the United States Supreme Court agreed to hear the case. On June 27, 2005, the court issued a unanimous decision finding that Grokster could be liable depending on whether they took actions to “induce” users to break copyright law. The Justices did not agree, however, on what exactly would qualify as inducement. When the case went back to trial court, Grokster was ordered to pay $50 million to the plaintiffs and Grokster ceased to exist.
File sharing services aren’t the only ones who the movie industry has gone after. In 2010 Voltage Pictures sued more than 24,500 IP addresses that illegally downloaded the movie “The Hurt Locker,” even before it was released to theaters. The following year, the suit was dropped because of difficulty in connecting names to those IP addresses, but the action makes clear that studios are willing to go after individual infringers as well as the companies that facilitate that infringement.
As for Popcorn Time, it mysteriously disappeared from the site hosting the download file on Wednesday of this week amidst news that the Motion Picture Industry of America was preparing to sue. If Grokster is any guide, Popcorn Time will not fare well in court — at least not in the U.S. As for me, I know where I’m going to see the movies I’m interested in- hunkered down in a seat at The Strand, where the only popcorn time I get is time that involves a big, buttery bucket of Strand corn.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Probate/Juvenile Court and a former Assistant Prosecuting Attorney.