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.
Unauthorized streaming is categorized as a public performance instead of distribution, which is punishable 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 met with public outrage and didn’t pass.
As a result, the gap between streaming and traditional file-sharing still remains today. This frustrates major copyright holder groups and recently caught the eye of the Senate Judiciary Committee as well.
Last month, the Committee’s Chairman Senator Thom Tillis, and Ranking Member Senator Christopher Coons, requested clarification from the US Government’s Copyright Office on several streaming-related issues.
The letter was sent after a hearing, where the NBA and the UFC both requested to increase the criminal penalty for streaming. The senators warn that streaming piracy poses important risks to copyright owners. The fact that this is seen as a lesser offense is problematic and creates a loophole for prospective copyright infringers, they argue.
“Based on the testimony we received regarding the apparent ‘streaming loophole’ enabling illicit streamers to avoid felony criminal liability, we would appreciate the U.S. Copyright Office providing clear guidance regarding if and when unauthorized streaming infringes the right to control distribution of a work.
“Allowing this to remain unanswered will only benefit infringers and harm America’s economy,” the senators add in their letter to the Copyright Office.
The senators asked several questions, starting with whether streaming piracy violates the copyright holder’s right to public performance. In a reply letter published this week, Copyright Office director Karyn Temple answered this with an unequivocal “yes,” which wasn’t a surprise.
The senators next wanted to know whether streaming piracy violates rightsholders’ right to control reproduction and distribution, as downloading does. This one was less straightforward with the Copyright Office noting that, depending upon the technology at issue, there may be instances in where this is the case.
These two questions are at the crux of the “loophole” debate as public performance infringements are seen as misdemeanors while reproduction and distribution offenses are felonies. Streaming is generally seen as a public performance.
However, in the response, the Copyright Office director stresses that it would like this to be changed. Responding to a question about its position, the Office is very clear.
“The Copyright Office supports the same level of felony penalties for violation of the public performance right as for the reproduction and distribution rights, a position reinforced by the combination of the growing importance of streaming to the U.S. economy and the failure of the current law to effectively address unauthorized streaming,” the Office’s response reads.
Finally, the senators asked whether the Copyright Office has any other suggestions to deal with the streaming piracy problem. The Office didn’t go into much detail on this issue but said that a small claims tribunal, which is currently being considered, could provide an additional tool for rightsholders.
The answers and the questions show that there is quite a bit of concern about streaming piracy. As such, it wouldn’t be a surprise to see this issue being addressed in future legislation. Whether that will pass is yet another question, but the Copyright Office is all for it.
“The Office has long supported a legislative fix for the ‘streaming loophole,’ although we do not endorse any particular method of addressing the problem at this time,” Temple writes.