White House: Streaming Should Be a Felony, Wiretap Infringers

President Obama's so-called "IP Czar" Victoria Espinel yesterday delivered a 20-page white paper containing her recommendations for future legislation, calling on Congress to make changes in order to make it easier to clamp down on copyright infringement. Among the recommendations are calls to turn streaming into a felony alongside authority to wiretap in copyright cases.

The Obama administration’s IP Enforcement Coordinator, Victoria Espinel, has finally released her list of proposals for changes in intellectual property law. While there is a strong presence in her white paper for action against counterfeit pharmaceuticals, it is likely that readers’ focus will be drawn to suggested measures for cracking down on the streaming of unauthorized media.

While in some cases the former will undoubtedly endanger lives and therefore carries a considerable gravity when considering legislation, the fact that the latter is even mentioned in the same breath is an immediate cause for concern.

In respect of sites offering streaming content, Espinel voices concern that their delivery mechanism of choice could be considered, under current law, to be more akin to a public performance. For copyright holders viewing from a deterrent perspective, this lower scale offense is problematic.

It is therefore proposed that streaming – or other new technological methods serving the same purpose – should be reclassified as the “distribution of copyrighted works” and, therefore, a felony.

With this upgrading to felony comes some other perks, notably in surveillance. While the FBI and other agencies are able to tap phones, Internet connections and other methods of communication as they investigate the most serious of crimes, copyright infringement is not currently one of them. If Espinel has her way, that will change.

“Wiretap authority for these intellectual property crimes, subject to the existing legal protections that apply to wiretaps for other types of crimes, would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises,” the paper reads.

As always, there are some concerns. While at first view the recommendations appear to be aimed at site owners (or the apparent preferred term “criminal gangs”), by classifying “streaming” as a felony there is the potential to suck in innocent victims. As streaming becomes more popular and sites utilize the upload bandwidth of viewers in order to distribute content to others (such as PPLive), do those viewers then become “streamers” too?

Then of course, one is naturally drawn to the recent case of 32-year-old Texan Bryan McCarthy, who was arrested for criminal copyright infringement for his alleged operations at ChannelSurfing.net.

McCarthy was charged with criminal copyright infringement for “reproduction and distribution” of copyrighted material, yet Southern District of New York Attorney Preet Bhara said that McCarthy “sought to profit by intercepting and then streaming live sporting events.”

So, if McCarthy “streamed” and that’s a criminal offense already, why is a change in the law required? Furthermore, it’s believed that he did not stream content, but merely embedded other people’s streams in web pages on ChannelSurfing. So streaming or not streaming, distributing or not distributing (embedding) are all criminal offenses? As usual, there are more questions than answers.

The full paper can be downloaded here.

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