Once upon a time, in the long-long ago bygone years of the 20th century, teenagers communicated their feelings through a medium known as the mix tape. Those of us who can remember tape cassettes can remember hitting “record” on a boom box at exactly the right moment when a favorite song started on the radio or, as the ’90s waned into the shadow of Y2K, recording tracks off a bunch of CDs into one themed tape to play in the car or slip into the hand of a not-so-secret crush.
But the teenagers of today, only barely born when we of yesteryear were partying like it was indeed 1999, don’t have bulky stereos taking up space — and neither does anyone else. We’re all using smartphones and streaming media of every type.
Likewise, while many of us once had shelves and boxes containing stacks of VHS tapes full of shows and movies recorded from live TV, we now have DVRs and on-demand cloud archives — less clutter, but without the charm of handwritten labels.
So now, instead of handing over a mixtape to impress a friend, we share a Spotify playlist. And instead of recording a favorite movie or a Christmas special onto a blank VHS tape when it airs and replaying it whenever the mood strikes, we just open a Netflix app and stream whatever suits our mood.
Increasingly, though, Netflix, Spotify and their kin do share one key feature with broadcast TV and radio of old: impermanence.
Sure, you can stream something to your heart’s content right now, instead of having to wait for 8 p.m. Eastern (7 Central!) to watch it — but what was there this month may not be available next month, as contracts shift around as content providers decide what they want to license or hold for themselves.
And so even in an entirely new era of media distribution the same question applies: can I record this and save it for later so that — regardless of me being online or something being available to stream — I can play it back whenever I want?
The answer, frustratingly, is simultaneously “yes” and “no.”
No, You May Not
Recording anything from the big streaming services is, as you could probably guess, strictly against the rules.
The best-known video and music streaming businesses don’t want you recording their stuff; they want you paying a subscription fee to them every month for continued access to their stuff. That makes sense: continued monthly payments are their entire business model. If you save the content and unsubscribe, they go broke.
So it’s unsurprising that pretty universally, the terms of use or terms of service for the streaming content companies say saving their stuff is a big no-no. A sample of TOS agreements shows how universally banned copying is:
•Netflix: Section 6E specifies, “You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix and its licensors.”
In short, recording from Netflix would fall under the header of archiving or reproducing material, which is explicitly not allowed.
•Hulu: Section 3.3 is particularly clear: “You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless expressly permitted by Hulu in writing.”
•Spotify: Section 8 says, “The following is not permitted for any reason whatsoever: copying, redistributing, reproducing, ‘ripping’, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Spotify Service or the Content.” Saving a copy would be, well, copying, which is explicitly banned.
•Pandora: Section 6 includes prohibitions on recording (as well as password-sharing and several other actions): “you shall not … modify, download, intercept, or create any derivative works of the Services, including any translations or localizations thereof … copy, store, edit, change, exploit, download, prepare any derivative work of, or alter in any way any of the content made available through the Services.”
You get the idea.
There are dozens of streaming media businesses but they generally all have some clause in them that says the same thing these ones do: recording our content in any way is a big no-no and will get you booted off our service. Period.
However…
Yes, You Technically Can
Copyright law is a bit of a tricky beast, and the technicalities matter. A lot.
Breaking or circumventing any kind of copy-protection mechanism on media is illegal. That’s what the Digital Millennium Copyright Act (DMCA) is all about. Aside from a few very specific, enumerated set of exemptions, you may not create copies of anything if doing so would require an end-run around locks it has built in.
But when you don’t have to break any locks, well, that’s a different story.
Betamax: The Next Generation
In 1984, the Supreme Court famously decided Sony Corp. of America v. Universal City Studios or, as most of us know it, the “Betamax case.”
The key finding from that SCOTUS ruling is that recording and time-shifted viewing of copyrighted broadcasts for your own, personal, non-commercial use is not copyright infringement, but instead qualifies as fair use.
The Court also ruled that the maker of a VCR could not be held liable for any infringing behavior an end user committed, which is what allowed VCR manufacturers to proliferate even though video pirates used them to create bootleg recordings.
The Betamax format went bust, of course, but the court’s ruling lived on in the millions of VHS VCRs that were legally sold with the promise of making it easy for consumers to record a show that was airing at an inconvenient time and play it back whenever they darn well pleased.
The VCR’s run faded out as DVD came in, but the promise of time-shifting stayed. DVRs hit the scene when TiVo launched in 1999; by 2014, 15 years later, DVRed, time-shifted programming had become the dominant way Americans watch TV.
Ratings giant Nielsen has long since had to take the +3 and +7 (three days and seven days after broadcast, respectively) ratings into account for its customers, because tens of millions of us are consuming programming at the times of our choosing, instead of when a network decides for it to air.
So we find ourselves in an awkward new position, legally: you can save anything you want for the purposes of time-shifted consumption, if it’s broadcast linearly. But on-demand programming is already time-shifted to you… so can you still record it?
Legally, so far, it seems the answer is “yes.”
For example, a company called PlayOn explicitly lets consumers do exactly this: record streaming media, from their own accounts to their own PCs, for later consumption on nearly any device.
It’s a handy tool if, for example, you’re going to be spending a lot of time without good internet access and want to bring a TV series with you… or if you’ve got a favorite movie on Netflix that’s falling off the service at the end of the month, and you want to record it now to archive it for watching later.
PlayOn has been offering this feature to its subscribers since 2011, and has thus far not faced any legal challenges from video providers during that time, CEO Jeff Lawrence told Consumerist.
When we asked if the company had been sued, he laughed and asked innocently, “For what?”
PlayOn, Lawrence explained, explicitly does not circumvent any DRM, nor does it access the encrypted stream in any way to download material. Instead, it functions essentially as a browser-based screen-capture program. The consumer has to queue up and play something in order for PlayOn to record it, which PlayOn then does in real-time invisibly in a background process.
Because PlayOn is technically functioning as screen capture software, and is not circumventing DRM, it stays on the “legal” side of the line. That applies even if users then illegally share and distribute those copies they made, just like the manufacturers of VCRs were not responsible for bootleg tapes being sold on street corners.
Schrödinger’s Mixtape
Currently, then, we are left in a box much like the famous quantum cat: As the situation currently exists, it is both expressly forbidden and yet also permissible to record streaming media for your own personal use, as long as you don’t break DRM to do it.
For now, it seems like this unsettled grey area is where we are going to remain. Copyright law does get periodically rewritten by Congress, but otherwise mostly changes through case law, like the court challenges that faced Betamax or Aereo.
So until some lawsuit somewhere progresses through the courts, the question of time-shifting on-demand content will remain unresolved.
Editor's Note: This article originally appeared on Consumerist.
