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Thursday, December 15, 2011

Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress

Brian T. Yeh
Legislative Attorney

Technological developments related to the Internet benefit consumers who want convenient ways to view and hear information and entertainment content on a variety of electronic devices. New technologies offer the potential to help copyright holders promote their creative works for artistic, educational, and commercial reasons. However, new technologies may increase the risk of infringement of the copyright holders’ rights because they often provide faster, cheaper, and easier means of engaging in unauthorized reproduction, distribution, and public performance of copyrighted works than previous technologies.

One of these new technologies enables the “streaming” of copyrighted content over the Internet from a website to an end user. There are many legitimate streaming websites such as Hulu, Netflix, YouTube, and HBO GO that offer on-demand streams of television programs, motion pictures, live sporting events, and sound recordings. However, streaming technology can also be misused for facilitating copyright infringement online. So-called “rogue” websites serve as an alternative to the authorized websites, willfully streaming unlawfully obtained copyrighted content to users and thereby infringing the copyright holder’s exclusive right to control public performance of the work. By offering consumers an unlawful alternative for viewing streaming content, these rogue websites may reduce the number of people who would otherwise visit the legitimate providers of copyrighted material.

To enforce their intellectual property rights, copyright holders may file a lawsuit against the alleged infringer. In addition to these civil remedies, the U.S. Department of Justice has the power to criminally prosecute particularly egregious copyright infringers (repeat and large-scale offenders) in order to impose greater punishment and possibly deter other would-be infringers. Yet under the current law, many illegal streaming websites have evaded prosecution due largely to a disparity regarding the criminal penalties available for those who willfully infringe copyrights by means of reproduction and distribution (a felony offense in certain circumstances) and those who infringe copyrights by means of public performance (a misdemeanor).

In March 2011, the U.S. Intellectual Property Enforcement Coordinator recommended Congress amend the law to harmonize penalties for the act of illegally streaming copyrighted content with those applicable to downloading and peer-to-peer file sharing of such protected material. Following this recommendation, S. 978 was introduced in the 112th Congress. Commonly referred to as the Commercial Felony Streaming Act, S. 978 would allow a maximum five-year prison sentence for those who, without authorization, willfully stream commercially valuable copyrighted material for purposes of commercial advantage or private financial gain. It also expands the current felony offense of unauthorized distribution of a pre-release commercial copyrighted work to include “public performance” of such work as an additional basis for prosecution.

Section 201 of H.R. 3261, the Stop Online Piracy Act, would make similar changes to criminal copyright law as S. 978 and also a few more. The notable new addition is that H.R. 3261 would authorize misdemeanor and felony penalties for non-commercial willful public performance by means of digital transmission, during any 180-day period, of one or more copyrighted works, where the total retail value of the public performance exceeds $1,000. That is, H.R. 3261 would allow criminal penalties for such streaming activity without proof that the willful infringement was committed for purposes of commercial advantage or private financial gain. Such a provision is not included in S. 978.

Date of Report: December 1, 2011
Number of Pages: 16
Order Number: R41975
Price: $29.95

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