Is it Okay to Record Online Music and Video?
If you grew up in the pre-Internet days, you probably remember recording songs from FM radio to cassettes, or saving your favorite TV shows on VHS tapes, to enjoy at a later time. The courts have ruled that these analog recordings are legal, as long as you are doing so for personal “time shifting,” with no intention to sell or re-distribute the content.
But in the digital age, is it legal to save a copy of a movie that you watched on Netflix, a show on Hulu, or a song from your favorite streaming music service? Well, you can, but you’re not supposed to. Whether it’s legal to do it is a murky, unsettled question. Here’s the current state of the controversy.
Netflix (and all other subscription streaming services) definitely don’t want you to record their streamed content and then cancel your subscription. They most certainly don’t want you to record a show and share it with the entire Internet. That would be the end of their business model if everyone did it. Every streaming service’s terms of service includes a provision explicitly banning recordings as a breach of contract. Here’s Netflix’s “thou shalt not record” clause:
But a company called PlayOn.tv has been helping consumers record streaming media since 2011. It has apps for iOS and Android mobile devices, and a Windows desktop app. These apps allow you to record content from over 50 channels, including “any video from Netflix, Hulu, Amazon Video, Yahoo View, ABC, NBC, CBS, Fox, HBO NOW, HBO GO, PBS, The CW, YouTube, and Showtime,” according to the company.
PlayOn recordings can be stored locally or on PlayOn’s cloud repository; the latter costs $0.20 per stored file. PlayOn lets you skip commercials, further infuriating content creators and distributors. But Roku and other digital video recorders do that, too. The PlayOn service for desktop PCs costs $34.99 right now (regularly $69.99). That’s a one-time fee; there is no monthly subscription, and only the modest one-time fee for each file stored in the cloud.
A Gray Area?
PlayOn definitely is a breach of contract that would allow Netflix to cancel your account and ban you forever. However, streaming services have no way to tell if you’re recording what you stream from them. If you don’t “share” recorded content by uploading it to torrenting sites, it’s highly unlikely that you will ever be caught.
The Digital Millennium Copyright Act (DMCA) criminalizes any circumvention of “digital rights management” software put in place by a content creator to prevent unauthorized copying. But PlayOn does not circumvent any DRM; it merely records what’s streamed to you.
Copyright case law protects a consumer’s right to “time shift” by recording streamed content for later viewing, as long as said viewing is for “personal, non-commercial use.” But what about on-demand video such as Netflix movies, which are already time-shifted for you? So far, the answer seems to be yes, you can, if only because no court has said otherwise. PlayOn notes that it has never been sued by content providers in its nearly seven years of existence.
But consider this extreme scenario: You sign up for free trials of Netflix, Hulu, etc., all you want. Program PlayOn to capture and save a lifetime’s worth of music and video for you. Then cancel your subscriptions before you have to start paying. That seems clearly wrong, but not technically illegal.
I think we’ll see some court cases about this in the not-so-distant future, and even some tricks from streaming providers that let them block apps like PlayOn. But for now, you won’t go to jail for recording all seven seasons of The West Wing on Netflix, or 180 episodes of Seinfeld from Hulu. The worst that can happen is that you’ll be banned from those streaming services, and have to make peace with your conscience.
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