The Senate Judiciary Subcommittee on Intellectual Property is actively looking for options through which the US can better address online piracy.
During a hearing last month, various experts voiced their opinions. They specifically addressed measures taken by other countries and whether these could work in the US, or not.
Pirate site blocking and upload filtering emerged as the main topics during this hearing. While pros and cons were discussed, movie industry insiders including Millennium Media co-president Jonathan Yunger framed these measures as attainable and effective.
After the hearing, senators asked various follow-up questions on paper. Last week we reported how former MEP Julia Reda answered these by stressing the importance of affordable legal options. Yunger, however, takes another approach.
In his answers, which were published before the weekend, he reiterates the power of website blocking. In addition, Yunger also brings a second, previously unmentioned issue to the forefront: criminal penalties for streaming piracy.
“The second thing that we could easily do in the United States is close the legal loophole that currently allows streaming – which accounts for the vast majority of piracy today – to be treated as a misdemeanor rather than a felony,” Yunger writes.
Under US law, streaming and downloading piracy are seen as two different offenses. Not just from a technical point of view, but also in the way they are punished. Streaming is seen as a misdemeanor, with a maximum penalty of one year in prison, while other forms are a felony, which can lead to five years of jail time.
Lawmakers tried to change this with the Commercial Felony Streaming Act in 2011, and later with the SOPA and PIPA bills. These bills all failed and as a result the gap between streaming and traditional file-sharing remains today.
In his answers, Yunger notes that ‘this loophole’ was completely accidental as streaming wasn’t a thing yet when the DMCA was enacted. Putting it on par with other forms of piracy would greatly help to address the streaming piracy problem.
“If we could make this adjustment to the law, it would effectively shut down a cottage criminal industry of websites, app developers, and set top box sellers in America who are profiting enormously from illegal streams of movies, television shows, and live events,” Yunger notes.
“These streaming services are an existential threat to our industry. Both the Department of Justice and the Copyright Office have recognized this threat to creativity and the American economy and have supported this change to the law,” he adds.
Millennium Media’s co-president says that there are dozens, if not hundreds, of Americans who’ve made a business out of criminal streaming. This isn’t a surprise for the Department of Justice. However, it’s harder to effectively prosecute these people under current law.
“We must change existing law to create a more powerful deterrent for Americans to engage in streaming piracy, and to allow the DoJ to prosecute these criminals who are engaged in massive levels of infringement with the same felony penalties that apply to illegal downloading and distribution,” Yunger notes.
These comments are not entirely new. Several copyright holders and industry groups have argued the same in recent years. Thus far, this hasn’t resulted in any legislative changes, but it looks like pressure is building.
In a way, it feels like history is repeating itself. Almost ten years ago, the same arguments were being made. At the time, website blocking and felony steaming made their way into concrete bills. These were eventually ‘shelved’ after massive public protests, but according to Yunger and others, it might be a good idea to reintroduce them, perhaps in a more modern form.
A copy of Jonathan Yunger’s full responses to the Senator’s questions is available here (pdf).