Senate Judiciary Committee Approves Commercial Felony Streaming Act by Voice Vote

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By a voice vote June 16, the Senate Judiciary Committee approved the Commercial Felony Streaming Act (S. 978), which would make it a felony to stream copyrighted works without authorization.

Section 506(a)(1)(C) of the Copyright Act currently identifies criminal copyright infringement “by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public.” While that statutory text captures downloading and uploading files containing unauthorized content, such as with peer-to-peer music sharing, it is debatable whether real-time streaming of that same content is subject to the provision as a distribution, or whether it is a performance and thus not subject to criminal penalties.

Introduced in May (94 PTD, 5/16/11), S. 978 would amend 17 U.S.C. § 506(a)(1)(C) by adding “public performance,” to make it clear that streaming is treated no differently from other illegal computer-based transfers of copyrighted material. S. 978 would also carve out a new criminal penalty for streaming under 18 U.S.C. §2319 by setting a prison term of up to five years for “10 or more public performances” that either provide $2,500 value to the infringer or represent $5,000 in market value.

A vote on the bill was postponed last week, as a quorum could not be met at panel's June 9 markup session.

Groups Applaud Bill's Movement

Stakeholders were quick to praise the committee action on S. 978.

“The distribution of other people's work without their permission should be punished the same way under the law regardless of the technology used,” Copyright Alliance Executive Director Sandra Aistars said in a June 15 press statement. “While in truth this is little more than a technical clarification, in a broader sense enacting legislation to address felony streaming is another battle in the war between creators and lawful distributors of copyrighted works and the parasitic websites that infringe their property.”

Labor groups representing content providers—including the American Federation of Musicians, the American Federation of Television and Radio Artists, the Directors Guild of America, the International Alliance of Theatrical Stage Employees, the Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, the International Brotherhood of Teamsters, and the Screen Actors Guild—released a joint statement as well, commending the Senate Judiciary Committee for passing S. 978 out of committee.

“This marks the second time in three weeks that the Senate Judiciary Committee has taken decisive action to approve legislation that can make a significant difference in fighting the scourge of online content theft,” the associations said, referring to the Senate Judiciary Committee's May 26 approval of the Protect IP Act (S. 968) (103 PTD, 5/27/11). That measure, which, still awaits action on the House side and on the Senate floor, would provide the Department of Justice and intellectual property rights holders with court-ordered means to shut down foreign websites that host infringing activities. Further, S. 968 would allow a federal court to issue a temporary restraining order or temporary injunction against a so-called rogue website—a site that traffics in infringing materials and which is directed at U.S. citizens.

The groups called the twin copyright bills “critical to the ability of law enforcement to actively and effectively combat the online theft of our members' work.”

“Make no mistake: the illegal streaming of content for commercial or financial gain is a crime, and the Commercial Felony Streaming Act places the appropriate criminal label on the activity. This legislation is an important step forward in our efforts to stem the rising tide of Internet theft that threatens our members' very livelihoods.”

By Nathan Pollard