Some members of Congress are trying to get more information on legally streaming video content after several recent hearings in favor of further crackdowns on illegal streaming.  The House of Representatives held a hearing with several witnesses giving testimony on June 1, but a bill had not been written yet.  The Senate held a markup session on a draft of the bill on June 9, but it did not proceed to the floor yet.

June 1, 2011: House of Representatives.

The Subcommittee on Intellectual Property, Competition and the Internet held a hearing to listen to those who want to update laws so that unauthorized public performances can be prosecuted.  That would allow those illegally streaming video or music to be charged as felons.  The Copyright Office, in the Executive Summary of their written testimony, explained that “the current criminal provisions of the Copyright Act and related provisions in Title 18 are insufficient to provide a basis for such prosecutions in cases where the primary cause of action is infringement of the exclusive right of public performance.”

Neither the No Electronic Theft Act (“NET Act”) of 1997 nor the Artists’ Rights and Theft Prevention Act (“ART Act”) of 2005, the two prior amendments in response to online infringement, addressed unauthorized public performances, because streaming was not a major commercial activity at the time.  The hearing last week was conducted to address the disparity in treating illegal streaming differently than illegal downloading and copying.

The Copyright Office emphasized that their takeaway points are: “(1) the public performance right is of growing importance in the commercial marketplace; and (2) prosecutors have a handicap when pursuing egregious cases of unauthorized streaming.”

At the hearing, “Promoting Investment and Protecting Commerce Online” Chairman Bob Goodlatte, R-Va., expressed the need to update the law as circumstances change and when new technologies emerge.

All witnesses on the panel were for making the public performance right eligible for felony charges, thus harmonizing that exclusive right with the rights of reproduction and distribution.  Currently it is a misdemeanor, even when the conduct is purposeful and with the intent to profit.  Michael O’Leary, executive vice president of the Motion Picture Association of America, and Sandra Aistars, executive director of the Copyright Alliance, were among those arguing for the felony charges.

Maria Pallante, confirmed earlier that day as the Register of Copyrights, explained how people don’t necessarily think in terms of “copies” anymore; this is especially evident in the area of streaming, which does not involve physical copying.  Pallante was careful to qualify that this is only an available cause of action when there is both willful, large-scale, egregious harm, and intent to profit.  This law isn’t intended to go after legitimate companies with streaming as part of their business model, or amateur YouTube users who are not intending to profit from their conduct.

However, there remain concerns that DOJ could prosecute unauthorized public performances or streaming (whether by individuals or services under secondary liability) beyond what was intended by this potential amendment.

Several of the participating Representatives shared important insights and questions.  Ranking Member Rep. Melvin Watt, D-N.C., started off saying that he “shares the view that we should get aggressive on this issue,” but later brought up his hesitations about the agreement among the panelists and wanted to hear opposing testimony, which was not present: “Is there someone who’s out there who’s not a crook?”  He then directly addressed any potential dissenting parties:  “If you want me to understand what you’re saying, you have to come talk to me because I don’t understand.”

Rep. Zoe Lofgren, D-Calif., was concerned about a change in the law stifling innovation and the potential for unintended collateral damage, and suggested a safe harbor for creators and service providers like the DMCA.  “When the next [insert big company] comes along, we don’t want to deter that innovation by chilling the whole tech development environment.”  She expressed distrust of prosecutorial discretion, fearing lawful business models getting caught in the criminal justice system when it’s really a civil dispute.

The hearing ended with O’Leary agreeing:  “We don’t want to deter the next Facebook, but we do want them to play by the rules.”

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