Proposed bill calls for stiffer punishments for violating copyright law via internet streaming

Imagine a federal statute that could put teen idol Justin Bieber in prison for entertaining millions of fans via the Internet.

The proposed Commercial Felony Streaming Act would make some instances of online streaming of copyrighted works a felony, and has generated substantial controversy about who will be targeted if it becomes law — is it the person uploading the infringing content, the online service provider that serves as a platform for viewing the content, or both?

According to Fight for the Future, a non-profit organization engaged in Internet policy advocacy, the bill could even be interpreted to put the teen pop singer, who rose to fame after posting YouTube videos of himself doing covers of copyrighted songs, behind bars. Using that argument as its platform, Fight for the Future has posted an online petition at freebieber.org opposing the bill, which has been introduced in the U.S. Senate.

“[D]idn’t Justin Bieber get famous by posting YouTube videos of himself singing copyrighted R&B songs? Yep.” says the website. “If this bill passes, he could get 5 years in jail.” The petition gained more than 50,000 signatures in less than a week’s time, said Fight for the Future Director Tiffiniy Cheng.

Bieber reacted to the bill in an interview with a radio station, saying that Sen. Amy Klobuchar (D-Minn.), one of the bill’s sponsors, “needs to be locked away, put away in cuffs.”

Two of bill’s sponsors have sought to clarify the scope of the bill.

“It does not apply to individuals who view streamed content,” Sen. Chris Coons (D-Del.) said in a press release, “only to individuals and sites providing the streamed content.”

Additionally, Klobuchar’s communications director, Linden Zakula, insists targeting YouTube uploaders like Bieber is not the bill’s intent.

“The bill language specifically targets people who willfully engage in copyright infringement for commercial advantage or private financial gain,” said Zakula. “The bill does not criminalize uploading videos to YouTube or streaming videos at home.”

However, despite such assurances, some opponents of the bill believe its enforcement might reach those posting legitimate streaming content.

Increased penalties for “public performance” of copyrighted works

The bill proposes changes to two sections of the Copyright Act, filling what some call a gap in the existing law.

The Copyright Act defines a public performance of a work — one of a copyright holder’s exclusive rights — as “to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Online streaming, through which users can listen to or view public performances without necessarily first downloading the file to their computers, falls into this category of protected rights, and has attracted increasing attention in recent years as the growth in high-speed Internet connections has made online streaming an easy alternative to delivering content on DVDs or through downloads.

Currently, the highest available penalty for illegal streaming is a misdemeanor. In contrast, prosecutors may seek felony penalties in some cases for the illegal reproduction or distribution of copyrighted works.

Senate Bill 978 proposes amendments to two sections of the Copyright Act to increase the penalties available for streaming.

First, the bill would add a “public performance” to the list of acts of infringement for which one could receive jail time. The current text of the statute criminalizes willful infringement of the “reproduction” or “distribution” of a copyrighted work, but not its “public performance.”

Second, the Commercial Streaming Act proposes new penalties available for streaming infringing content: a fine and/or up to five years in prison for those engaging in “10 or more public performances by electronic means” in an 180-day period of a copyrighted work where the total value of the performances is more than $2,500 or the total market value of licenses to perform the work is more than $5,000.

Closing a gap in copyright law

After the introduction of the bill, the Independent Film & Television Alliance, the Motion Picture Association of America, Inc., and The National Association of Theatre Owners issued a press release urging quick passage of the bill, saying that it would “close a gaping hole in the law.”

The bill is supported by 50 organizations, a number largely comprised of members of the motion picture and network programming industries such as the Motion Picture Association of America, the American Society of Composers, Authors and Publishers and the Recording Industry Association of America.

Their concerns stem from years of efforts — often resulting in litigation — to stop copyright infringement committed via streaming online.

For example, on March 21, 2009, champion boxer Roy Jones, Jr. was scheduled to fight boxer Omar Sheika in a pay-per-view boxing and mixed martial arts match. Jones’ promotional company, Square Ring, owned the copyright to the match, and licensed the rights to television networks, who could then distribute it to viewers who paid to view the match.

On the day of the match, it was made available for public viewing in its entirety on the live video streaming website USTREAM.tv.

Subsequently, Square Ring sued USTREAM for copyright infringement, alleging that the streaming of the match on its website illegally gave 2,377 USTREAM users access to the entire pay-per-view event for free.

With the increase in high-speed Internet connections and live-streaming platforms online, copyright holders have turned to Congress for help.

“What’s happened is that big media has for years attempted to use the civil court process to enforce against online infringement,” said Corynne McSherry, Intellectual Property Director at Electronic Frontier Foundation, a non-profit organization that also opposes the passage of the Commercial Felony Streaming Act. “That hasn’t always gone well for them, so they’ve gone for help to Washington.”

And in response to pressure from copyright holders, Washington reacted.

In March, the Obama administration released a white paper recommending legislative changes related to intellectual property enforcement, making a request that Congress “clarify that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony.”

“Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is not a felony),” the administration said in the paper. “These questions have impaired the criminal enforcement of copyright laws.”

Two months later, Acting Register of Copyrights Maria Pallante, urged the U.S. House Committee on the Judiciary’s Subcommittee on Intellectual Property, Competition, and the Internet to amend copyright law to add violation of a copyright holder’s “public performance” right in a work as a basis for felony prosecution.

“Often with nothing more than an additional cable or satellite line connected to a television set and readily available (and often free) streaming software,” Pallante said, “an infringer can capture television programming signals or Internet streams and re-transmit popular television shows and live sporting events over the Internet.”

With these pushes from the government and copyright holders, senators Klobuchar, Chris Coons (D-Del.), and John Cornyn (R-Texas) introduced the bill on May 11.

Some opponents of the bill say its language is unclear.

“There is a lot of gray area in copyright law,” Cheng said. “There have been courts around the U.S. who have interpreted who is liable under these copyright laws, and they fall on all different kinds of people. It’s clear that uploaders and people who have shared videos through streaming services like YouTube have their videos taken down all the time, and it’s unclear who exactly would be liable under this bill.”

Other critics of the bill are concerned that despite the stated intent of those who introduced the bill, enforcement efforts may ultimately affect legitimate streaming content.

“I don’t have any reason to disbelieve the drafters of the bill if they say their intent is to go after the biggest commercial folks,” McSherry said. “I think that there has been an effort in there to set up a series of threshold requirements, I see that. But when I look at the recent history of government IP enforcement, it doesn’t leave me feeling really confident that the effect won’t be to sweep up legitimate speech and legitimate communications along the way.”

McSherry says this bill is part of the movement that has taken place, particularly in the past year, of “stepping up D.C.-based IP enforcement efforts.” While she is concerned about the streaming bill, she says she is also worried about other proposed legislation before Congress that seeks to expand intellectual property owners’ rights online.

Other legislative IP protection efforts

In response to demands from the movie industry and programming networks, two other bills have been introduced — one in the House and the other in the Senate — that would give the federal government and copyright holders stronger tools to fight infringing activities abroad.

The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, or PROTECT IP Act for short, was approved by the Senate Judiciary Committee in May.

The PROTECT IP Act would expand the federal government’s copyright enforcement ability with respect to foreign websites that are “dedicated to infringing activities” by allowing the U.S. Department of Justice to demand that search engines and domain names block access to such sites.

More than 50 organizations support the PROTECT IP Act, many of whom also support the Commercial Felony Streaming Act.

Among those opposing the bill are Google, Yahoo, and Visa, Inc. Additionally, more than 100 intellectual property, First Amendment, and Internet law professors wrote to Congress opposing the bill, arguing that it is unconstitutional in that it removes speech from the Internet without notice and an adversarial hearing.

Additionally, the professors contend the bill “would also suppress vast amounts of protected speech containing no infringing content whatsoever,” since blocking access to a domain name would block access to all websites operating under that domain name as sub-domains. The bill has been introduced in the Senate.

The second bill was introduced on Oct. 25 in the House of Representatives — the STOP Online Piracy Act — which in effect combines the provisions of the two Senate bills — the Commercial Felony Streaming Act and the PROTECT IP Act — into one House bill.

Kristin Leavy, a media and information technologies attorney, emphasized the importance of carefully drafting the language in the Commercial Felony Streaming Act to avoid unintended consequences.

“It could shut down YouTube, or any ISP,” Leavy said. “The problem is that it could be far-reaching if it’s not crafted in an appropriate manner.”