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Streaming Pirate Content Isn't Illegal, UK Trading Standards Says (torrentfreak.com)
Every day millions of people use PCs, tablets, phones and Kodi-style devices to stream pirated content, but is it illegal? According to Trading Standards, local UK authorities tasked with investigating commercial organizations, if users only stream and don't download, they're likely exempt from copyright law. An anonymous reader shares a TorrentFreak report: "Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws," the spokesperson added. This statement certainly carries some weight. Although in a different region of the UK, Trading Standards is the driving force behind the prosecution of Kodi box seller Brian Thompson who entered a not guilty plea in January. He'll face a trial in a couple of months but it now seems more clear than ever that his customers and millions like them around the country are not breaking the law, a position that's shared by the EU Commission.
Does "streaming" imply the use of some protocol that attempts to prevent the recipient from saving? What if we stream using a protocol with a known vulnerability? What if we develop a new streaming protocol and deliberately include a vulnerability? What if it is based on encryption with a password that is hard-coded to be "password" and cannot be changed? What if it merely requires the use to check a box that says, "I solemnly swear that I obey the law, mostly"?
Your hypotheticals come from someone thinking like a geek, which is a bit pointless here. You should instead think like a lawyer. Start from the relevant quote: http://www.derbytelegraph.co.u...
Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws."
That presumably relates to a long-running question about copyright as regards temporary copies in computers. Here's the wikipedia explanation: https://en.wikipedia.org/wiki/...
For a long time, the legal position of services such as Internet caches was dubious under British law, with such copies technically being infringing. However, an amendment explicitly allows temporary copies of literary works, other than when in computer programs and databases; of dramatic works; of artistic works; of musical works; of typographical arrangements; and of films or sound recordings – provided that such temporary copies are necessary for a technical process, are transient or incidental, and are made only for the purpose of transmitting a work across a network between third parties, or for a lawful use of the work. That amendment eliminates the awkward position of the cacheing services of Internet service providers. It is in a similar vein to an exception for the incidental inclusion of a copyright work in an artistic work, sound recording or film. However, deliberate inclusion of a copyright work negates the exception.
Here's the actual text of the law: http://www.legislation.gov.uk/...
Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -- (a) a transmission of the work in a network between third parties by an intermediary; or (b) a lawful use of the work; and which has no independent economic significance."
That answers most of your questions: "Does "streaming" imply the use of some protocol that attempts to prevent the recipient from saving?" -- no. "What if we stream using a protocol with a known vulnerability?" -- irrelevant. "What if I check a box which says I solemnly swear to mostly obey the law?" -- irrelevant. It also answers a question implied by your train of thought: if you use software to watch a stream, and you take advantage of flaws or deliberate designs in this software to save a copy, then the exceptions won't apply to you, and you'll be guilty of copyright infringement.
Your other questions were about authoring a protocol or software that has flaws or deliberate designs that allow folks to save a copy. This doesn't fall foul of anti-circumvention law because you're authoring the protocol yourself, not circumventing someone else's. And if a publisher uses this protocol? -- it's up to them, but using a protocol wouldn't constitute a waiver of their copyright rights.