Is PlayOn Legal?


October 13, 2016 | Tracy's Blog

A question we get from time to time is: Are PlayOn and PlayOn Cloud Legal?

The answer is "Yes." It's why PlayOn has been around for 8+ years. The detailed explanation is complex and features case law, but if you're curious, or need a snooze...read on.
 
First, let’s address PlayOn’s PC desktop recording feature:
 
The PlayOn service is a DVR (“digital video recorder”) for streaming video (or a “streaming video recorder”). Just like any DVR, like a TiVo, the service allows users to make their own recordings for private, non-commercial purposes.  Recording programs for viewing at a more convenient time is permitted by United States copyright law as fair use.  See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the “Sony Betamax Case”.  So is recording programs for viewing in a more convenient place.  See Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir. 1999). Those cases provide evidence of the right to use personal recordings for the purpose of time- or space-shifting.  See Lenz v.Universal Music Corp., 815 F.3d 1145, 1152 (9th Cir. 2016) (fair use is “a right” and engaging in fair use is “authorized by the law”).
 
So – like any other DVR, PlayOn is protected under the Fair Use doctrine of US copyright law.
 

Extending that to the PlayOn Cloud service and the PlayOn Cloud app:
 
We have established that the making of a recording for personal use for the purposes of time- or place-shifting is protected as “fair use.” The PlayOn Cloud service simply allows users to make those same recordings remotely, in the cloud . The legality of a consumer requesting recordings to be made and stored remotely, on hosted servers was established by Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), also known as the “Cablevision case”. Users can later download and play back those individual/separate/unique recordings from their own personal remote DVR storage under fair use, per this case.  

Further, the PlayOn Cloud app is identically situated to any other app that allows users to remotely trigger, download, and play back personal DVR recordings.  For example, the TiVo app has functionality identical to that of the PlayOn Cloud app.  Like the PlayOn Cloud app, the TiVo app allows users to trigger a remote device to create a personal and noncommercial recording, exercising the right of fair use.  And like the PlayOn Cloud app, the TiVo app allows users to download or play back their recordings from remote storage. The TiVo iOS app makes this clear in its description by saying, “download your content to enjoy anywhere so that low bandwidth or lack of a Wi-Fi connection never slows you down”.  The Simple.TV app and the Tablo app offer similar features. Indeed, the operation of the Dish Anywhere app, which also allows the transfer (download) of recorded content to an iOS device, was recently found by a federal court to be fully authorized by law, and does not require permission from the copyright holder.  Fox Broad. Co. v. Dish Network LLC, No. CV 12-4529 DMG SHX, 2015 WL 113759 (C.D. Cal. Jan. 20, 2015).  The Dish Anywhere iOS App description also makes this feature clear by saying, “Users...can now Transfer DVR recordings to their iPhone and watch them offline”. All of this functionality is common to other iOS DVR companion Apps.  All of this functionality is authorized by the law.
 
How is PlayOn Cloud different from Aereo – which lost its legal battle?
 
While Aereo did offer a cloud DVR, like PlayOn Cloud does, Aereo was not challenged as a cloud DVR.  They were challenged as a re-broadcaster of live TV signals, and were deemed to be a cable company (and subject to the laws of cable companies) due to their similarity to a cable company. PlayOn is not a cable company, nor does it resemble one. PlayOn is a Cloud DVR company.  The Cablevision decision applies here, but the Aereo decision does not.