Under U.S. law streaming and file-sharing are seen as two different offenses. Not just from a technical point of view, but also in the way they are punished.
Streaming is categorized as a public performance instead of distribution, which can only be charged as a misdemeanor, not a felony.
Lawmakers tried to change this with the Commercial Felony Streaming Act in 2011, and later with the SOPA and PIPA bills. These bills were shelved after public outrage, with many people fearing that uploading copyrighted YouTube videos could possibly land them in jail.
As a result the gap between streaming and traditional file-sharing still remains today, However, several large filmmaker unions hope it will reappear on the political agenda soon.
This week Directors Guild of America, Inc. (DGA) and the International Alliance of Theatrical Stage Employees (IATSE) responded to a public consultation by U.S. Intellectual Property Enforcement Coordinator (IPEC) Daniel Marti, who asked for comments on the new Intellectual Property Enforcement plan.
“Our members are clearly greatly harmed by copyright infringement and digital theft,” the unions write. “Digital theft erodes their ability to earn a living and feed their families, and it depletes the vitality of their pension and health plans.”
Traditionally there has been a strong focus on P2P file-sharing piracy, but the unions write that streaming is slowly taking over. The problem, according to the unions, is that the law still sees it as a lesser offense.
“While illegal downloading of our members’ creative works remains the best known method of Internet theft, illegal Internet streaming has actually become the preferred viewing and listening experience,” they write.
“Unfortunately, the law has not kept pace with these new consumer habits. While illegal downloading and distribution is a felony, the illegal, willful, and commercial streaming of films, TV programs, and music remains only a misdemeanor.”
In their submission (pdf) the filmmaker unions refer to the failed Commercial Felony Streaming Act which would have leveled the playing field. According to them, this bill should be brought back to the table.
This would allow the Department of Justice to prosecute streaming pirates as well, which is not so straightforward at the moment.
“We believe that the law should reflect the reality of the digital world. Quite simply, The Commercial Felony Streaming Act would not have criminalized any behavior that was not already considered criminal.”
“Instead, it would have equalized the penalty so that digital thieves would not be free to steal content via streaming when they would be prosecuted as a felony were they to do so via a download.”
While the public may not like the proposed changes, there’s a good chance that they will indeed be introduced again. Last year the Obama administration hinted at a renewed effort to criminalize streaming.
Any future bills will most likely be targeted at the operators of streaming services and sites, but depending on the exact language it could also affect a broader group of people.
In their letter the unions encourage the administration to continue this plan and integrate it into the 2016 – 2019 Joint Strategic Plan on Intellectual Property Enforcement, which will be released in a few months.
“We support the Administration’s determination that the law should be amended to address this issue and would work with the Administration to revitalize this legislation and bring it back to the forefront of the IP enforcement conversation,” they conclude.