Toronto Copyright Lawyer, Gil Zvulony recently spoke to Dan Misener of CBC Radio (listen to the podcast) on the legality of the movie streaming application, “Popcorn Time”. Popcorn Time has been dubbed the “Netflix for Pirates” because of it’s very simple and user-friendly interface.
Gil Zvulony’s legal opinion was that the application likely runs afoul of the Copyright Act, RSC 1985, c C-42 because it is an “enabler” of copyright infringement. The specific section in the Copyright Act reads as follows:
Infringement — provision of services
(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider
(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
(c) whether the service has significant uses other than to enable acts of copyright infringement;
(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
(e) any benefits the person received as a result of enabling the acts of copyright infringement; and
(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.
Gil and Dan also discussed potential liability of users of the software. Specifically reference was made to a recent decision by the Federal Court and amendments to the Copyright Act regarding statutory damages that made it uneconomical in most cases, to pursue individual downloaders.