Currently, a big difference exists in the legal definition between downloading and streaming. Downloading is considered a felony that’s punishable by law, while streaming is a public performance with a misdemeanor punishment.
As you can see, this creates a loophole that’s easy for cybercriminals to exploit. And that’s what the Subcommittee on Intellectual Property wants to put an end to.
What Does the 2011 Commercial Felony Streaming Act Say?
It was known as the Commercial Felony Streaming Act and it was proposed on May 12, 2011 by John Cornyn, Chris Coons, and Amy Klobuchar. If this bill had passed then it would have become an extension of the US Code Title 18 Section 2319.
Its main aim was to ensure that it’s a felony to illegally stream copyrighted content in order to gain financial or commercial gain. Since the bill didn’t pass, unauthorized streaming is still considered a mere misdemeanor.
According to this bill, criminals would face up to 5 years in prison if found guilty. It provides a comprehensive definition of unauthorized streaming as streaming more than 10 times within 180 days. The streamed material must have a monetary value of $2,500 or more, or with licensing fees worth $5,000 and higher.
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A Few Questions for the Copyright Office
Coons and Tillis started by attending a hearing with UFC and NBA representatives. This was followed by an assistance request from the Copyright Office of the US Government.
This request was regarding four questions related to streaming and the following are the Copyright Office’s replies:
1. Is illegal streaming considered a violation of public performance on the part of the copyright holder? If yes, why?
Yes, illegal streaming involves public performance rights. Streaming is by definition the real-time distribution of digital media content to the general public. It could be for the purpose of playing, watching and listening to said content while transferring it to a user’s private device.
According to the testimony of Maria A. Pallante, streaming involves the distribution of performance to the general public. Therefore, it can be legally defined as public performance. Pallante is the former Register of Copyrights.
After conducting a review of the 2014Aereo case, the Supreme Court concluded that streaming can be construed as a public performance due to the purposes expressed by Congress. The Copyright Office also expressed that streaming can be defined as public performance thanks to the 2016 report, titled “The Making Available Right in the United States.”
Therefore, it stands to reason that illegal streaming without any applicable limitations or exceptions interferes with the right of public performance.
According to a recent report, streamed content is in high demand with over 500 licensed online video portals available for viewers to choose from. These platforms offer different content including sports shows, motion pictures, and television content.
This report also shows that the major challenge facing the digital video industry is piracy. Piracy has led to $29.2 billion in annual losses, and counting. About 80% of these losses are due to illegal streaming.
On the other hand, streaming is rapidly growing due to its ability to provide virtually unlimited access to recorded music among other forms of entertainment. Online music streaming accounted for 46.9% of the global industry in 2018, while stream-ripping is one of the biggest challenges facing the industry as a form of piracy.
The United States Trade Representative compiled a list of eight websites that were implicated in some form of streaming piracy. This was part of the organization’s broader compilation of dishonorable online markets. This list is meant to expose the most prominent examples of on and offline markets that facilitate counterfeiting and piracy on a grand scale.
These websites are mainly guilty of providing illicit streaming devices (ISDs, stream-ripped files and hosting pirate streams.
2. Can illegal streaming be considered an infringement of the copyright holder’s right to control distribution and reproduction?
Clearly, the illegal streaming of copyrighted content affects the public performance right. But, this depends on the technology in use as it might implicate both distributions of reproduction rights.
Basically, the type of copyright rights involved will depend on the facts of each individual case.
That’s why legislators are pushing to criminalize streaming. In order for that to happen the penalties involved for the violation of distribution and reproduction rights should be the same as those for public performance violations.
As for criminal encroachment, the prosecution should no longer be held back by discrepancies between felony definitions. These definitions are based on the delivery method of the content in question.
3. Is it true that increasing criminal punishment for illegal streaming of copyrighted content from misdemeanor to felony will discourage illegal streaming?
In the past, the Copyright Office has shown support for legislative amendments that offer similar felony-level punishments for criminal distribution, reproduction and streaming.
This doesn’t take into account that streaming can be construed as the distribution or reproduction of content. But there are plenty of situations where it’s seen as public performance. However, in most situations, it can be difficult to figure out which is which.
As such, the Copyright Office is of the opinion that distribution, reproduction and performance rights all deserve protection under legislation that penalizes their violation as a felony. The Copyright Office also believes that it’s possible to criminalize streaming under a law that doesn’t limit individual streaming.
According to the Copyright Act, there are three bases for criminal copyright infringement prosecution. All three require willful infringement. The first basis is all about infringement in order to acquire commercial or financial gain. It can be used to prosecute users who impinge on the right of public performance.
Meanwhile, the U.S. Criminal Code only makes provision for violations of reproduction and distribution rights as the basis for felony infringement prosecution. Any infringements on the right of performance can only be punished as a misdemeanor. The remaining criminal infringement bases contained in the Copyright Act only cover the distribution and reproduction of content.
The Copyright Office provides similar support for felony punishments involving the violation of public performance. Granted it’s linked to distribution and reproduction rights. The Copyright Office’s position is made firm by the fact that streaming has a considerable effect on the U.S. economy. Therefore, it’s pertinent for current legislation to address any and all forms of unauthorized streaming.
The policy suggestion to criminalize streaming is backed by the Department of Commerce Internet Policy Task Force as well as the Department of Justice. The 112th Congress received a bill aimed at fighting unauthorized streaming and is willing to assist in the development of proper legislative language.
4. What other legislation could assist in eliminating the growing problem of illegal streaming?
The Copyright Office has always been willing to collaborate with the Subcommittee and the Department of Justice for the purpose of coming up with the right enforcement tools needed to eliminate the illegal streaming of copyrighted content.
One such effective tool would be the small copyright claims tribunal which is designed to assist smaller copyright owners to exercise their civil rights. That’s not all because the Copyright Office might offer other recommendations based on its examination of section 512 notice-and-takedown systems.
So, where to from here?
One thing’s for sure; this is a developing story that’s sure to show considerable progress in the next few months and we’ll definitely keep you in the loop about them.
How to Know If a Streaming Service is Legal or Not?
It’s not up to the consumer to determine which of their add-ons, apps or streaming services are legal or not. After all, most consumers don’t have the necessary knowledge to ascertain whether an online streaming portal has the proper licenses and papers in place.
Most of the IPTV portals on offer look and function as if they’re 100% legal. In fact, a lot of them look similar to legal services like DirecTVNow, YouTube and Sling, to name but a few. That’s why it’s really difficult to develop enforceable law around this issue.
Take SET TV, for example. Before their major takedown, this platform claimed to have all the proper licenses in place and they marketed themselves (successfully) as a legitimate services provider. They had a professional-looking website and came with all the features and tools you’d expect from a legit service.
Changing the Business Model
This created the initial impetus for the creation of affordable streaming services like Spotify whose premium service costs only $9.99 a month. This business models enables music listeners to access pretty much any song for just $9.99 per month plus it’s conveniently available 24/7 on your mobile device.
It’s also risk-free and much safer and more convenient than torrenting and illegal downloads. Compared to services like Spotify, file sharing sites are a waste of time and not worth the effort.
Perhaps this is the same route that the motion picture and cable/satellite industries need to take. AT&T lost almost 1 million subscribers in 2019 alone, while Comcast said goodbye to 224,000 of its video subscribers.
The message is clear. People are tired of paying for expensive satellite/cable packages. Maybe the industry needs to look into an a la carte service where consumers would pay only for the channels they want, instead of forcing people to pay for channels that they’re not using.
The entertainment industry is facing a huge challenge and one that it’s not necessarily prepared to handle. Five new apps or services pop up for each one that’s removed from the scene.
This scenario is unlikely to change given the technological landscape we live in. The World Wide Web will always provide avenues for consumers looking for free or low-cost options. The cable/satellite and motion picture industries are up against thousands of IPTV providers, and counting! Getting rid of all of them is practically impossible at this point.
As is, the situation is a waste of lawmaker’s time and money trying to develop useless laws that will never catch up to the ever-changing tech space.
What are your thoughts on the push to criminalize streaming? Do you think it’s effective or a waste of time and resources? Let us know in the comments below.