S.978: Sending Illegal Streamers Up The River?

Senate bill would criminalize unauthorized streaming.

The White House and Congress have finally managed to agree on something. We’ll concede that it’s a relatively minor issue . . . unless you’re engaged in the illegal streaming of copyrighted content, in which case you could be looking at up to five years, maybe even ten, in the Big House and a hefty fine to boot.

In March we reported on a “White Paper” in which the President’s U.S Intellectual Property Enforcement Coordinator laid out a number of “Intellectual Property Enforcement Legislative Recommendations”.   One of those recommendations: Congress should “clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances.” 

The White Paper wasn’t clear whether the recommendation applied to music, video, or both. Nor did it say exactly what standard of culpability would apply. For instance, would innocent mistakes – the streaming of audiovisual content for which you thought you had cleared all copyrights – be subject to the felony penalty? We surmised that the Administration was mainly concerned with illegal streaming of video, which is occurring with increasing regularity but not technically punishable under existing law. (Federal criminal law currently applies to illegal file sharing or downloading, but not to instantaneous streaming.)

A bipartisan trio of Senators has now acted on the White House’s recommendation. On May 12, 2011, they introduced S. 978, which would amend 18 U.S.C. §2319 and 17 U.S.C. §506 to include streaming within the definition of felonious criminal conduct. (For those of you who keep track of such things, Minnesota Democrat Amy Klobuchar is technically the bill’s sponsor, but she is joined by fellow Democrat Christopher Coons from Delaware and a Republican from Texas, John Cornyn.)

The bill makes two fundamental changes involving 17 U.S.C. §506 (the section of the Copyright Act that defines “criminal infringement”, i.e., the kind of copyright infringement that can result in jail time) and 18 U.S.C. §2319 (the section of the federal criminal code that spells out the potential penalties for criminal infringement).

S.978 would expand the current definition of “criminal infringement” to include streaming (which the bill refers to as “public performance”). Anyone who engages in the unauthorized public performance of a copyrighted work could be criminally charged, as long as (a) the “public performance” involves making the work available on a publicly-accessible computer network and (b) the work was intended for commercial distribution. 

Previously, the statutory definition of “criminal infringement” included only reproduction (i.e., copying) or distribution (i.e., actually transfer or sale of a copy for permanent retention) of a copyrighted work.  The expansion to include streaming is seen by the bill’s sponsors as necessary because prosecutors, concerned that the current law arguably doesn’t criminalize unauthorized streaming, have hesitated to try to prosecute streamers.

The penalty for streaming (set out in 18 U.S.C. §2319) would start with three years in prison and fines. Jail time could go as high as ten years if the infringer is a repeat offender. 

S. 978 would also insert a new penalty provision into Section 2319 aimed at criminal streaming intended to result in commercial advantage or private financial gain for the infringer. Such infringement would warrant a minimum five-year sentence (plus fine), but only if (a) the offense consists of ten or more “public performances by electronic means” in any 180-day period and (b) either the total retail value of the performances exceeds $2,500 or the fair market value of the license required to offer the performance exceeds $5,000. 

Copyrighted works protected here include audio-only works (musical works and sound recordings), audiovisual works (motion pictures, television programs, etc.), and computer programs. So if the bill is enacted, anyone engaged in webcasting without a license would appear to be subject to criminal penalties. While we still believe the focus is firmly on the illegal streaming of audiovisual content (like movies, live sporting events, other television programs), it is clear that the law could be used against anyone who is webcasting without the required licenses.  One more reason to come into compliance with the statutory license applicable to webcasting.

This bill has some serious muscle behind it. All three original co-sponsors are members of the Senate Judiciary Committee, which has jurisdiction over I/P-related legislation. The Chairman of that Committee, Patrick Leahy (D-VT), has expressed support for vigorous enforcement of copyright infringement (including re-introducing a bill to allow websites engaged in repeated and egregious offenses to be shut down entirely). It’s also supported by some serious lobbying interests in the U.S. Chamber of Commerce, RIAA, MPAA, Independent Film and Television Association, Directors Guild of America, International Alliance of Theatrical Stage Employees, Screen Actors Guild, American Federation of Television and Radio Artists, National Association of Theater Owners, and, if that’s not scary enough: the Ultimate Fighting Championship (so, oppose at your own risk). 

So all in all, we’d say this will get some attention and movement.

Bottom line: it is clearly “game on” with regard to any unauthorized uses of copyrighted content. All broadcasters should be certain they are in compliance with ASCAP, BMI, SESAC and SoundExchange (the last relating to the online streaming or “webcasting” of music) and that they fully understand the extremely complex nature of copyright law as it applies to the performance, reproduction or other uses of others’ content. Of course, we are here to help you learn all about it.

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