Legal Perspectives on the Streaming Industry: The United States

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise of streaming services has been made possible by the exponential growth in bandwidth capacity and Internet penetration during the past two decades, combined with the wide dissemination of smart phones, tablets, and similar devices used by end-users to stream.1The growing price competitiveness of subscriptions for paid streaming services and their large collections are also important factors in this respect.2 An alternative to file downloading, streaming allows users to access the streamed content for immediate listening or watching, and in a non-permanent manner. Yet, while streaming has become ubiquitously popular and one of the more prevalent methods of content distribution today, this technology profoundly challenged the traditional relationship between copyright owners, intermediaries and service providers, and users.3 This Report offers a review of the legal challenges that streaming, and the ensuing creation of a “celestial jukebox,”4 represents for copyright owners and copyright intensive industries and the legal responses that have been developed, so far, in the United States. Due to its limited scope, however, this Report presents only a summary of the existing legal regulation and case laws as well as recent developments and remaining open issues. Readers interested in a more comprehensive analysis can find additional information in the sources cited in footnotes. Moreover, discussions are currently taking place in the U.S. Senate and within the U.S. Copyright Office regarding copyright reforms precisely to address streaming technology. This Report briefly refers to these discussions at the time of writing, yet readers need to follow future updates and developments.5 In particular, the Report proceeds as follows. Part II offers a primer of streaming and a general review of the current legal responses, and remaining challenges, under U.S. copyright law. Part III addresses the specific regulation of existing streaming services. These services include digital service providers (DSPs) and user generated content (UGCs) services. DSPs are closed platforms that control their catalogues and content, while UGCs are open platforms that allow users to upload contents. Streaming services can also be divided into interactive, or on-demand, services and non-interactive services, which often transmit live-streaming content. Notably, Part III.A focuses on the regulation of legal streaming services, both subscription-based and freemiums, and highlights the licensing models used by these services. Part III.B addresses illegal streaming services and the recent U.S. development to strengthen the legal responses against these services. Part III.C addresses the so called “semi-legal services,” whose main objective is legal streaming, but at times may stream illegal contents. This Part focuses, in particular, on the safe harbor provisions established by the Digital Millennium Copyright Act (DMCA). Part IV briefly concludes the Report and highlights its main takeaways