Twitter became a minefield of spoilers last month after the penultimate episode of HBO’s Game of Thrones leaked online.
The episode, titled “Eastwatch,” still managed to mark a ratings high for the show, with an estimated 10.7 million viewers, despite throngs of fans watching the episode beforehand by downloading or streaming the leak.
But could downloading a leaked episode get you in legal hot water?
Yes, according to UC Davis law professor Peter Lee.
“Downloading and watching unlicensed content generally constitutes copyright infringement, as the user is making an unauthorized copy,” Lee said.
Prior to the most recent leak, several episodes of the show leaked online in 2015.
A number of fans who had downloaded those leaked episodes reported receiving notices from their internet service providers.
“No one is authorized to exhibit, reproduce, transmit, or otherwise distribute HBO Properties without the express written permission of HBO, and the unauthorized distribution of HBO Properties constitutes copyright infringement. This conduct may also violate other laws, international law, and/or treaty obligations,” the notice read.
Under the Digital Millennium Copyright Act, Internet service providers can be held liable for hosting pirated copyrighted material and must follow certain protocols to rectify the abuses when they become aware — which can lead to a crackdown on customers.
HBO spokesperson Laura Young said that company policy dictates that they not comment on “specific tactics” for countering piracy, but provided a statement that HBO “aggressively protects its programming.”
Senior Associate Dean at the UC Davis School of Law Madhavi Sunder said that in terms of copyright, leaks are even worse than piracy, as it violates the copyright holder’s right of first publication.
“The leaks go beyond just the illegal downloading of episodes in general — they lose the ability to control the timing,” Sunder said. “It goes to a core right that they have as copyright holder.”
But it is often difficult for authorities to determine who at a specific IP address is responsible for an illegal download, making prosecution challenging.
In addition, while downloading leaked episodes is certainly illegal, streaming them represents a more complicated legal challenge.
According to Lee, streamers can still run afoul of the law if the streaming includes “whole or partial downloading or copying into a computer’s cache memory,” playing the stream for a large audience outside of your normal circle or posting it elsewhere online.
So what’s the bottom line? Is downloading leaked copyrighted content illegal?
“Let me put it this way,” Sunder said. “The only way I could see it being legal is if Cersei Lannister wins the game of thrones — because then it’s anything goes.”
Laura Young, HBO spokesperson
Peter Lee, UC Davis law professor
Madhavi Sunder, UC Davis School of Law associate dean