White House Wants Congressional Clarity That Illegal Streaming Can Be Felony

IPE Coordinator Espinel suggests law is unclear over streaming designation

By John Eggerton -- Broadcasting & Cable, 3/15/2011 10:55:44 AM

The Obama Administration is recommending that Congress clarify that streaming illegal content, in addition to downloading it, can be a felony.

That is one of a host of legislative recommendations by Intellectual Property Enforcement Coordinator Victoria Espinel in a just-released White Paper on intellectual property enforcement and protection.

The administration has also proposed establishing a performance copyright for radio broadcasts, which broadcasters have been battling as a "performance tax."

Espinel points out that under existing law, it is unclear that streaming copyrighted work can be subject to a felony penalties because such penalties are "predicated on the defendant either illegally reproducing or distributing the copyrighted work." While, intuitively, streaming would seem to pretty clearly be distribution, there has been some legal question about that designation.

"To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the
Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances."

The report says the radio performance right will, at least partly, allow copyright owners to collect fees internationally. The National Association of Broadasters offered a legislative packagetaht it said would "unlock" that overseas money and indicated Tuesday it was ready to work with the music labels to pass that bill in this Congress.

"The recommendations largely address important areas of intellectual property enforcement that are often overlooked in more contentious debates at the edges of these issues," said Public Knowledge President Gigi Sohn. "While there may be room for disagreement on specific methods of implementation, Victoria Espinel has compiled a thoughtful list of targeted recommendations for enforcement."

 "We note as well her advocacy on behalf of a public performance right for copyright owners for material which is broadcast. While this seems tangentially related to an enforcement agenda, performing artists deservingly stand to benefit from such a system."

"Closing the legal gap between two methods of equally destructive illegal behavior - unauthorized downloading and streaming - adds more clarity to intellectual property law and, frankly, makes good common sense," said MPAA President said MPAA President Bob Pisano. "Both the House and Senate are examining this issue and we look closely to working with them and the Administration to combat this escalating threat."