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DOJ Urges Congress to Make Illegal Streaming a Felony

DOJ Urges Congress to Make Illegal Streaming a Felony

LOS ANGELES—Unwilling to let a law enforcement provision of the ill-fated Stop Online Piracy Act die along with the rest of the bill, the U.S. Department of Justice is still trying to get Congress to increase the penalty for the unauthorized streaming (as opposed to downloading) of copyrighted content from a misdemeanor to a felony. The request to make that change to law was made yesterday by David Bitkower, The DoJ's Acting Deputy Assistant Attorney General, Criminal Division, to members of the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet, during a hearing on copyright remedies.

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In his prepared testimony, Bitkower made the case that while the government "has been successful in prosecuting a broad array of criminal copyright cases... the creativity of copyright infringers and the technological changes that they exploit will likely only become more salient with time." It is for that reason, he stated, that "Congress has repeatedly been called upon to update our copyright law to account for new forms of intellectual piracy."

More specifically, he added, "One new challenge confronting copyright owners and law enforcement authorities is the rise of Internet 'streaming' as the dominant means of disseminating many types of copyrighted content online. Like the evolving technology discussed above, this activity also derives from advances in technology: in this case, the growth in availability of high-speed Internet to the average consumer."

The problem, he said, is that the "structure of existing copyright law does not favor prosecution of such illicit streaming sites. Criminal law currently provides felony penalties for infringements of two rights afforded under copyright law: reproduction and distribution of copyrighted works. Internet streaming, however, generally implicates a different right: the right to public performance, violations of which currently correspond only to misdemeanor charges. Consequently, in most cases, infringing streaming can be prosecuted only as a misdemeanor, even when sites are willfully streaming pirated content to large numbers of users, and turning huge profits through advertising revenue and subscriptions."

The solution, he said, is for Congress to act. "To deter pirate streaming websites from illegally profiting from others' efforts and creativity,"Bitkower told the lawmakers, "the Administration recommends that Congress amend the law to create a felony penalty for unauthorized Internet streaming. Specifically, we recommend the creation of legislation to establish a felony charge for infringement through unauthorized public performances conducted for commercial advantage or private financial gain. Such a change could be accomplished without changing the structure of existing criminal copyright law. Although this change would not create a new category of criminal behavior—since such conduct is already deemed a misdemeanor crime—it would emphasize the seriousness of the threat that unauthorized streaming poses to legitimate copyright holders, clarify the scope of conduct deemed to be illegal in order to deter potential infringers, and provide the Department with an important tool to prosecute and deter illicit Internet streaming."

Bitkower in his prepared testimony also said that efforts to combat intellectual property crime globally were going to be expanded in 2015, including the creation of "a unified program to address issues such as Internet copyright piracy at the source."

The full text of Deputy Assistant AG Bitkower's prepared testimony is available here.

Webcasts of yesterday's hearing can be found here.






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