Under U.S. 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. However, calls to change this continue to resurface, especially now that streaming piracy is much more prevalent than file-sharing and downloading.
During a hearing at the Senate Committee on the Judiciary last week, two major US sports organizations renewed their calls to criminalize streaming.
Among the speakers were Michael Potenza, vice president and intellectual property counsel for the NBA, as well as Riché McKnight, who’s the Global Head Of Litigation at the UFC’s parent company Endeavor. Both sounded the alarm bell about streaming piracy, live streaming in particular.
Potenza informed the subcommittee on Intellectual Property that his organization relies on streaming and that it has benefited from the technological advancements that were made in recent years. However, these same technologies are abused by pirates.
To fight streaming piracy, the NBA has implemented a multi-pronged approach, of which takedown notices are an important part. The sports league uses a combination of human reviewers and technology to spot illegal broadcasts and tries to shut these down as soon as possible. Unfortunately, many of these reappear soon after.
“Even when the NBA is successful in shutting down an illegal streaming website or social media accounts, continued vigilance during all live games is important, as the illegal streams often reappear at a new domain extension or social media account,” Potenza said.
In some cases, illegal streams are operated or promoted by criminal enterprises. These sell dedicated pirate streaming boxes, unauthorized subscriptions, or offer web-based streaming portals. These dedicated streams can be virtually impossible to shut down, as they are hosted by companies that ignore takedown notices.
“Some of these bad actors actively promote non-compliance with DMCA notices as a reason to sign-up for their ‘DMCA Ignored Hosting’ services. Platforms that utilize these services and fail to respond to take down notices in a timely manner do so intentionally,” Potenza noted.
McKnight shared many of the same concerns. He pointed out that UFC events are severely impacted by piracy and hinted that social media and other digital platforms should step up their game. This includes terminating accounts of known infringers, but these companies could do more.
“In addition, digital platforms should consider sending out piracy notices to their users before live events — or if that is not feasible, then at least periodically — reminding them that piracy is illegal. Much like the copyright notices at the start of a movie, these warnings can remind law-abiding viewers that unauthorized streaming is illegal,” McKnight said.
Another common theme was a renewed call to criminalize online streaming. Both witnesses said that this could help to deter people from getting involved in the pirate streaming business.
“Without a real fear of criminal prosecution, pirates are emboldened to continue engaging in illegal activity to distribute sports content – whether it is manufacturing and selling ISDs or operating an illegal streaming service,” NBA’s Potenza said.
“It is important to revise the criminal law to recognize illegal streaming of copyrighted content as a felony, which would provide a more effective way to deter illegal streaming,” he added.
This call was backed by Endeavor’s Global Head Of Litigation, who added that criminalizing streaming could motivate other countries to follow suit.
“Strengthening the penalties will deter illegal streaming and increase the likelihood of prosecutors bringing these cases to court. In addition, it will send a message to the rest of the world that the United States takes this issue seriously, and will provide other countries an incentive to take similar actions,” McKnight noted.
While the NBA and the UFC’s parent company agree that penalties for streaming should be similar to those of other forms of piracy, both witnesses stressed that this criminalization should target organized operations, not casual users.
“I would clarify that, in terms of proportionality, we’re not seeking these types of penalties for people who simply log onto a pirated stream. Or even just for people who upload a pirated stream or two onto a social media platform,” McKnight said.
“I think the casual viewer who’s streaming a game in his or her own home shouldn’t be subject to felony liability, or even misdemeanor liability,” Potenza added.
Interestingly, the subcommittee Chairman, Senator Thom Tillis, jumped in at this point noting that he believes some penalties are warranted. Just the other day, he was tempted to look for a pirated copy of Game of Thrones, and potential penalties could motivate people to turn to legal sources more often.
“I’m a Game of Thrones fan and I missed the Sunday night episode. Fortunately, I have HBO on demand, so I caught up last night, but there was a temptation for me to go out on the internet and see if I can find some way to get it. I didn’t do it, but if I had, I think it would have been fair if I had some minor penalty,” Tillis said.
“That may at least make the general public a little bit more mindful that if you get caught you’re going to pay for it. You need to be aware of that and make sure that you’re going to sites that are legally disseminating the information. I don’t want to completely let the consuming public off the hook,” the Senator added.
Based on this response, it seems that there is at least some support in Congress to criminalize unauthorized streaming. However, for now, there are no concrete proposals on the table yet.
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Written by David Minister
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