Streaming vs. Downloading – what’s the difference (legally speaking)?

It’s been a busy first quarter so far. As many of you know, earlier this year, the famed website Megaupload went down, unleashing a fury of angry film and music downloaders (as well as advertisers). The central theme, of course, was access to on-demand content, or following the shutdown, a lack thereof. Most users of the Megaupload service (and others like it – let’s call them “fileshare servers”) accessed content on fileshare servers through one of two methods: download and stream. To most of us, these terms are often thought of as synonymous – the process doesn’t matter, so long as we get our content when we want it. However, there is a vast difference, both in terms of technology and legal ramifications, which I’ll summarize briefly here. I’m going to explain both in terms of the shower and the bathtub.

Stream: the Shower

As the name suggests, to “stream” means to “flow like water” [definition mine]. Imagine you have a reservoir and that reservoir is full of water. You open a spigot and through the pipes flow the information. When you close the spigot the flow pauses. But, you can always recommence that flow. Now let’s add in one more variable – you are in the shower. The water that passes through the pipes and flows over your head gets used of course, but we don’t hold onto it. It, instead, goes over us and into the drain. Now, replace the water with data and the reservoir with the fileshare server. The data flows through the pipes to our consumption devices from the fileshare server, and on the basis of our own control of the spigot. We can start, stop, rewind, and so on. However, as the data passes through our devices in the way water flows over our heads in the shower, the data is never held onto, in the same way the water goes down the drain. We aren’t filling a bathtub here. Therefore, we never actually keep any of the data (or content embodied therein).

At this point you might be saying, “So what Jordan? Download, stream – who cares? I still get to watch my movie.” Well, that might be true, but here’s the key difference from a legal perspective: in our simplistic model, when you stream, you don’t keep any data. And if you aren’t keeping any data, then you can’t redistribute that data. This therefore means that you only use the data for one simple purpose: consumption. From a content distributor’s perspective, this avoids some of the necessity of ensuring that you, the user, doesn’t redistribute the content or data in illegitimate ways. It simplifies the licensing requirements involved in providing content on a streaming basis. A license to stream, on the most simple terms, is simply a license to use the data as it passes through, with no right to sublicense, redistribute, store, amend, duplicate, change, or so on. You simply take it as it comes to you, much in the same way you take the water from the shower as it falls out of the spout.

Download: the Bathtub

When you download, think of a bathtub instead of a shower. As the water comes out of the spout, we have the same control of start and stop as we do when in the shower, correct? We can pause our downloads, we can stop them altogether. However, much like a bath, a download isn’t really useful to us until it’s full. Therefore, to make effective use of a bathtub and a download we have to “plug the drain”. We must hold onto it and use it for an extended period of time. So, with data, our devices don’t serve as pass through entities, but rather, as storage containeres in much the same way a bathtub works for water.

This has a significant legal consequence. Namely, since you hold onto data instead of letting it pass through a device, you acquire a different set of de facto rights in the data. For example, if you download an entire film onto your computer (legally, of course), you enter into a license agreement with the distributor of that content. That license is going to let you consume the content, much in the same way a streaming license will. However, a download license will, by the very nature of downloading, specifically prohibit you from doing certain things with that content, namely, making available for redistribution through copying or subsequent streaming or making available for download through third party systems, modifying, amending, and so on. The subtle difference of “keeping” data fundamentally changes the way in which the data is viewed through a legal lens.

Conclusion

This is a simple analysis of the difference between streaming and downloading, and by no means does it exhaust many of contingencies (both technological and legal) which are involved in such considerations. However, understanding the differences on a high level offers a glimpse into the reasoning behind content creators’ frustration with illegal streaming services, the ability of users to download content for their own redistribution, and the lengthy agreements we enter into with Netflix or iTunes when streaming or downloading content.
*This article is for informational purposes only and by no means constitutes legal advice*