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Illegal Internet Streaming of Copyrighted
Content: Legislation in the 112th Congress
Brian T. Yeh
Legislative Attorney
August 29, 2011
Congressional Research Service
7-5700
www.crs.gov
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CRS Report for Congress
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Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress
Summary
Technological developments related to the Internet benefit consumers who want convenient ways
to view and hear information and entertainment content on a variety of electronic devices (such as
televisions, radios, computers, mobile phones, video game consoles, and portable media players).
New technologies offer the potential to help copyright holders promote their creative works for
artistic, educational, and commercial reasons. However, new technologies may increase the risk
of infringement of the copyright holders’ rights because they often provide faster, cheaper, and
easier means of engaging in unauthorized reproduction, distribution, and public performance of
copyrighted works than previous technologies. The widespread consumer use of high-speed
Internet connections as well as increased reliance on data storage offered by “cloud computing”
services may also contribute to infringement problems.
One of these new technologies enables the “streaming” of copyrighted content over the Internet
from a website to an end user. There are many legitimate streaming websites such as Hulu,
Netflix, YouTube, and HBO GO that offer on-demand streams of television programs, motion
pictures, live sporting events, and sound recordings. However, streaming technology can also be
misused for facilitating copyright infringement online. So-called “rogue” websites serve as an
alternative to the authorized websites, willfully streaming unlawfully obtained copyrighted
content to users and thereby infringing the copyright holder’s exclusive right to control public
performance of the work. By offering consumers an unlawful alternative for viewing streaming
content, these rogue websites may reduce the number of people who would otherwise visit the
legitimate providers of copyrighted material.
To enforce their intellectual property rights, copyright holders may file a lawsuit against the
alleged infringer. In addition to these civil remedies, the U.S. Department of Justice has the power
to criminally prosecute particularly egregious copyright infringers (repeat and large-scale
offenders) in order to impose greater punishment and possibly deter other would-be infringers.
Yet under the current law, many illegal streaming websites have evaded prosecution due largely
to a disparity regarding the criminal penalties available for those who willfully infringe
copyrights by means of reproduction and distribution (a felony offense in certain circumstances)
and those who infringe copyrights by means of public performance (a misdemeanor).
In March 2011, the U.S. Intellectual Property Enforcement Coordinator recommended Congress
amend the law to harmonize penalties for the act of illegally streaming copyrighted content with
those applicable to downloading and peer-to-peer file sharing of such protected material: “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.”
Following this recommendation, S. 978 was introduced in the 112th Congress. Commonly referred
to as the Commercial Felony Streaming Act, S. 978 would authorize a maximum five-year prison
sentence for those who, without authorization, willfully stream commercially valuable
copyrighted material for purposes of commercial advantage or private financial gain. It also
expands the current felony offense of unauthorized distribution of a pre-release commercial
copyrighted work to include “public performance” of such work as an additional basis for
prosecution. The Senate Judiciary Committee approved the bill on June 16, 2011, by voice vote,
and Senator Leahy reported the bill on June 20 without amendment.
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Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 2
Brief Overview of Copyright Law............................................................................................. 2
Streaming Technology ............................................................................................................... 3
Criminal Copyright Statutes Relating to the Internet....................................................................... 5
Legislation in the 112th Congress..................................................................................................... 7
Summary of S. 978, the Commercial Felony Streaming Act..................................................... 7
Analysis............................................................................................................................... 8
Arguments for the Legislation............................................................................................. 9
Criticisms of the Legislation ............................................................................................. 10
Contacts
Author Contact Information........................................................................................................... 11
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Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress
Introduction
Streaming technology allows a person to view or listen to creative content without first needing to
download a data file containing the content onto a hard drive or memory card, assuming the
user’s electronic device maintains an active connection to the Internet during the duration of the
performance of the material. There are many legitimate streaming websites that offer on-demand
streams of television programs, motion pictures, live sporting events, and sound recordings.
However, so-called “rogue” websites willfully stream copyrighted content without the permission
of the copyright holder, thus violating the copyright holder’s exclusive right to control public
performance of the work. By offering consumers an unauthorized alternative for obtaining
streaming content, these rogue websites may reduce the number of people who would otherwise
visit the legitimate providers of copyrighted material. Such harm to the legitimate market for
streaming of copyrighted content may negatively impact the U.S. film and television industries as
well as the U.S. economy as a whole.1 In addition, some believe that rogue websites “expose
consumers to criminals, who routinely collect personal and financial information from
unsuspecting targets, subjecting those consumers not only to fraud and deceit, but also to identity
theft and other harms.”2
To enforce their intellectual property rights, copyright holders may file a lawsuit against those
who illegally stream their protected works.3 They may also file a lawsuit against those who
engage in the unauthorized reproduction and distribution of copyrighted works (whether using
Internet technologies or traditional methods). In addition to these civil remedies, the U.S.
Department of Justice (DOJ) has the power to criminally prosecute particularly egregious
copyright infringers (repeat and large-scale offenders) in order to impose greater punishment and
possibly deter other would-be infringers.4
However, a disparity exists regarding the criminal penalties available for those who willfully
infringe copyrights by means of reproduction and distribution (a felony offense in certain
circumstances) and those who infringe copyrights by means of public performance (a
misdemeanor). In the digital context, this means that DOJ prosecutors could seek felony penalties
for those who engage in willful, unauthorized copying and distributing of copyrighted material
using Internet technologies, depending on the specific facts of the allegedly infringing activity;
such penalties include imprisonment sentences of up to 10 years.5 In comparison, prosecutors
1 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming: Hearing
Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary, 112th
Cong., 1st Sess. (2011) (written statement of Michael P. O’Leary, Executive Vice President, Motion Picture Association
of America, Inc.).
2 Id.
3 17 U.S.C. § 501.
4 The 94 U.S. Attorneys’ Offices located across the country have primary responsibility for prosecution of IP offenses.
Every office has a Computer Hacking and Intellectual Property (“CHIP”) Coordinator, who are Assistant U.S.
Attorneys with expertise in prosecuting IP and computer crimes. U.S. DEP’T OF JUSTICE, COMPUTER CRIME &
INTELLECTUAL PROPERTY SECTION, PROSECUTING INTELLECTUAL PROPERTY CRIMES (3rd ed., Sept. 2006), at 6, available
at http://www.usdoj.gov/criminal/cybercrime/ipmanual/01ipma.html.
5 18 U.S.C. § 2319(b)(1), (2).
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may only file misdemeanor charges that carry a maximum sentence of one year in prison against
those who engage in willful, unauthorized online performance of copyrighted works.6
In March 2011, the U.S. Intellectual Property Enforcement Coordinator (IPEC) advised Congress
to amend the law to authorize felony penalties for infringement of copyrights by streaming:
Ensure Felony Penalties for Infringement By Streaming and by Means of Other New
Technology: It is imperative that our laws account for changes in technology used by
infringers. One recent technological change is the illegal streaming of content. Existing law
provides felony penalties for willful copyright infringement, but felony penalties are
predicated on the defendant either illegally reproducing or distributing the copyrighted work.
Questions have arisen about whether streaming constitutes the distribution of copyrighted
works (and thereby is a felony) and/or performance of those works (and thereby is a not a
felony). These questions have impaired the criminal enforcement of copyright laws. 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.7
This report describes streaming technology, explains the disparity in criminal penalties for
different forms of infringement committed by electronic means, analyzes legislation in the 112th
Congress that would harmonize penalties for illegal streaming with those available for other
forms of online copyright infringement, and summarizes arguments for and against such a
legislative change.
Background
Brief Overview of Copyright Law
Copyright is a federal grant of legal protection for certain works of creative expression, including
books, motion pictures, television shows, photographs, artwork, and music.8 A copyright holder
possesses several exclusive legal entitlements under the Copyright Act, including the right to
control reproduction, distribution, public performance, and public display of the protected
material.9 Unauthorized use of a copyrighted work by a third party in a manner that implicates
one of the copyright holder’s exclusive rights constitutes infringement.10
The Copyright Act has both criminal and civil provisions for infringement.11 The copyright holder
may file a lawsuit against an alleged infringer for a violation of any of the exclusive rights
6 18 U.S.C. § 2319(b)(3).
7 U.S. Intellectual Property Enforcement Coordinator, Administration’s White Paper on Intellectual Property
Enforcement Legislative Recommendations, March 2011, at 10, available at http://www.whitehouse.gov/sites/default/
files/ip_white_paper.pdf.
8 17 U.S.C. § 102(a).
9 17 U.S.C. § 106. For a detailed description of the major provisions of the Copyright Act, see CRS Report RS22801,
General Overview of U.S. Copyright Law, by Brian T. Yeh.
10 17 U.S.C. § 501.
11 See 17 U.S.C. § 501 (civil) and § 506, 18 U.S.C. § 2319 (criminal).
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conferred by copyright. The civil remedies available to the copyright holder that is harmed by
infringement include the possibility of obtaining injunctive relief,12 actual damages suffered by
the copyright owner due to the infringement,13 statutory damages,14 and costs and attorney fees.15
While “civil law protects all the copyright owner’s exclusive rights, criminal law primarily
focuses on the rights of distribution and reproduction.”16
Criminal copyright infringement includes the following offenses:17
• copyright infringement for profit, 17 U.S.C. § 506(a)(1)(A), 18 U.S.C. § 2319(b);
• copyright infringement without a profit motive, 17 U.S.C. § 506(a)(1)(B), 18
U.S.C. § 2319(c);
• pre-release distribution of a copyrighted work over a publicly accessible
computer network, 17 U.S.C. § 506(a)(1)(C), 18 U.S.C. § 2319(d);
• circumvention of copyright protection systems in violation of the Digital
Millennium Copyright Act, 17 U.S.C. § 1204;
• trafficking in counterfeit or illicit labels and counterfeit documentation and
packaging for copyrighted works, 18 U.S.C. § 2318;
• bootleg recordings of live musical performances, 18 U.S.C. § 2319A; and
• unauthorized recording of motion pictures in a movie theater (camcording), 18
U.S.C. § 2319B.
Streaming Technology
Internet technologies such as instant messaging, e-mail, peer-to-peer file sharing, electronic
bulletin boards, cyber-lockers (a cloud computing service offering remote data storage), and
streaming allow for electronic transmission of data files. Although such technologies have
legitimate purposes, they may also be misused in ways that infringe copyrights. Until recently,
most forms of online copyright infringement involved violations of the copyright holder’s
reproduction and distribution rights; for example, rogue websites that offer illegal downloads of
copyrighted movies and software, or peer-to-peer file sharing of copyrighted sound recordings,
infringe both the copyright holder’s reproduction right (through the unauthorized copying of
copyrighted content) and distribution right (through the unauthorized dissemination of these
unlawfully made copies). 18
12 17 U.S.C. § 502.
13 17 U.S.C. § 504(b).
14 17 U.S.C. § 504(c)(1).
15 17 U.S.C. § 505.
16 U.S. Dep’t of Justice, Computer Crime & Intellectual Property Section, Prosecuting Intellectual Property Crimes (3rd
ed., Sept. 2006), at 3, available at http://www.usdoj.gov/criminal/cybercrime/ipmanual/01ipma.html.
17 For a detailed explanation of these statutes and their corresponding remedies, see CRS Report RL34109, Intellectual
Property Rights Violations: Federal Civil Remedies and Criminal Penalties Related to Copyrights, Trademarks, and
Patents, by Brian T. Yeh.
18 For more information on this topic, see CRS Report R41415, Statutory Damage Awards in Peer-to-Peer File Sharing
Cases Involving Copyrighted Sound Recordings: Recent Legal Developments, by Brian T. Yeh.
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However, technological advances in recent years—such as increased capacity in network
bandwidth, faster broadband connections for consumers, more powerful computer processors,
new transmission protocols, and more efficient data compression methods—have made possible
the public performances of a wide range of copyrighted works over the Internet, including live
content (such as sporting events) or pre-recorded performances (such as television programming
and motion pictures). Streaming technology enables such public performance of copyrighted
material from a particular source to a destination such as a personal computer, television,
smartphone, or video game console. Consumers have many ways of receiving entertainment
content and information through legitimate video streaming websites such as Hulu, Netflix,
YouTube, HBO GO, MLB.com, and Crackle.19 Video streaming now accounts for a significant
portion of broadband Internet traffic, a percentage that is steadily growing as streaming websites
increase in popularity.20
In addition to legitimate streaming websites, there are also “rogue” websites that use streaming
technology to illegally distribute movies and television shows “because it is faster, cheaper, and
more convenient” than providing often lengthy file downloads.21 The availability of such illegal
alternatives for online streaming of copyrighted works means that “at any given time, users are
one or two clicks away from listening to or viewing any television program, movie, music video
or song in the world—all with no return to the creator.”22 In addition to rogue streaming websites,
there are also illegal “cyberlockers” that are file hosting services that encourage users to upload
copyrighted content in order to store and “share” them (either through streaming or downloading)
with other users.23
According to the Register of Copyrights, the unauthorized streaming of copyrighted material
infringes the copyright holder’s right of public performance, and possibly also the rights of
reproduction and distribution.24 As noted earlier, copyright holders may sue operators of illegal
streaming websites to enforce their intellectual property rights. The federal government may also
prosecute rogue streaming websites for criminal copyright infringement, although the remedies
authorized by law appear to be limited to misdemeanor penalties.
The difficulty in criminally prosecuting those who illegally stream copyrighted works is that the
law is unclear whether the act of streaming is considered a distribution of a copyrighted work or a
public performance of the work. Some claim that this lack of clarity over the availability of
felony penalties for unauthorized streaming of copyrighted content has made federal prosecutors
19 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Michael P. O’Leary, Executive Vice President, Motion Picture
Association of America, Inc.).
20 SANDVINE, GLOBAL INTERNET PHENOMENA REPORT: SPRING 2011, available at http://www.sandvine.com/downloads/
documents/05-17-2011_phenomena/Sandvine%20Global%20Internet%20Phenomena%20Report.pdf (reporting that
“Real-Time Entertainment traffic is continuing its journey to network dominance, particularly in North America, where
it represents 49.2% of peak period fixed access traffic.”).
21 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Sandra Aistars, Executive Director, Copyright Alliance).
22 Id.
23 Id.
24 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Maria A. Pallante, Register of Copyrights),
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Illegal Internet Streaming of Copyrighted Content: Legislation in the 112th Congress
“reluctant to pursue cases against even the most egregious, illegal Internet streaming services”
because they “tend to focus their limited resources and manpower on prosecuting felony offenses
that might result in significant jail time.”25 The Register of Copyrights testified before Congress
that streaming is “a lesser crime on the books” that “may never be punished at all” because
“prosecutors have little incentive to file charges for a mere misdemeanor.”26
Criminal Copyright Statutes Relating to the Internet
In 1997 and 2005, Congress passed laws providing criminal penalties for certain Internet activity
that infringes copyrights. The No Electronic Theft Act (NET Act)27 was enacted in 1997 as a
response to a 1994 federal district court decision, United States v. LaMacchia.28 The defendant in
LaMacchia, an MIT graduate student, operated an electronic bulletin board system that allowed
users to upload and download infringing software and videogames. The defendant established and
operated this BBS for fun and did not seek any personal financial benefit from it. The DOJ could
not prosecute him for criminal copyright infringement because, at the time of this case, the
criminal copyright infringement statute required willful infringement committed for commercial
advantage or private financial gain. Instead, the DOJ charged the defendant with conspiracy to
commit wire fraud.29 However, the federal judge dismissed the indictment against LaMacchia
because of a 1985 Supreme Court decision, Dowling v. United States,30 that ruled that the wire
fraud statute could not be used as a copyright enforcement tool. In dismissing the indictment, the
judge noted that Congress has the power to change the law:
This is not, of course, to suggest that there is anything edifying about what LaMacchia is
alleged to have done. If the indictment is to be believed, one might at best describe his
actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in
any fundamental sense of values. Criminal as well as civil penalties should probably attach
to willful, multiple infringements of copyrighted software even absent a commercial motive
on the part of the infringer. One can envision ways that the copyright law could be modified
to permit such prosecution. But, it is the legislature, not the Court which is to define a crime,
and ordain its punishment.31
The NET Act was designed to close the LaMacchia loophole in criminal copyright law. It
amended the Copyright Act and the criminal code several ways, including the following:
1. Expanded the scope of the term “financial gain” in the definitions section of the
Copyright Act (17 U.S.C. § 101) to include the receipt (or expectation of receipt)
of anything of value, including other copyrighted works. Thus, federal
prosecutors need not prove that the defendant received cash as a result of a
25 Motion Picture Association of America, Inc., Press Release: S. 978: The Commercial Felony Streaming Act,
available at http://www.mpaa.org/Resources/2f0f3647-2403-40cd-9638-16ee42ec8373.pdf.
26 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Maria A. Pallante, Register of Copyrights).
27 P.L. 105-147, 111 Stat. 2678 (1997).
28 871 F. Supp. 535 (D. Mass. 1994).
29 Id. at 541-42.
30 473 U.S. 207 (1985).
31 LaMacchia, 871 F. Supp. at 545 (internal quotation marks and citations omitted).
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criminal copyright infringement, but instead that he received (or expected to
receive) something of value (for example, he provided infringing copies to others
in exchange for other copyrighted works).
2. Created a new criminal copyright offense, 17 U.S.C. § 506(a)(1)(B), that does not
require willful infringement for commercial advantage or private financial gain;
instead, the reproduction or distribution, including by electronic means, during
any 180 day period, of copyrighted works with a total retail value of more than
$1,000, is itself an act that is eligible for criminal prosecution (regardless whether
the defendant benefited or expected to benefit from the infringement).
3. Amended the criminal code provision (18 U.S.C. § 2319) that specifies
punishments for the criminal offenses described in the Copyright Act (17 U.S.C.
§506(a)) by adding the words “including by electronic means” after
“reproduction or distribution,” in referring to the felony offense that prohibits the
unauthorized reproduction or distribution of 10 or more copies of copyrighted
works with a total retail value of at least $2,500, for the purposes of commercial
advantage or private financial gain.
Notably, the NET Act addressed the types of online infringing activity (unauthorized reproduction
and distribution) that was most prevalent at that time; it does not apply to unauthorized public
performances of copyrighted works over the Internet.
Congress enacted the Family Entertainment and Copyright Act of 200532 that included the Artists’
Rights and Theft Prevention Act of 2005 (ART Act). The ART Act created a new statute, 18
U.S.C. § 2319B, that expressly prohibits the unauthorized recording of motion pictures in a movie
theater. In addition, it established a new category of criminal infringement: unauthorized
distribution of a pre-release commercial copyrighted work. This provision was intended to
address the problem of people knowingly distributing via the Internet unlawfully acquired copies
of motion pictures, musical works, software, and sound recordings, before the copyright holder
has made them legally available to the public. The two provisions are complimentary in that
people may use a camcorder to record a movie being performed in a movie theater and then
distribute that recording over the Internet before the movie is distributed by the copyright holder
in DVD or downloadable formats. However, like the NET Act, the ART Act did not expand the
scope of criminal copyright law to include unauthorized public performances of copyrighted
works over the Internet.
With the amendments made by the ART Act to the criminal copyright infringement statute, 17
U.S.C. § 506(a), there are currently three independent bases for criminal prosecution for
copyright infringement:
1. Willful infringement for purposes of commercial advantage or private financial
gain, 17 U.S.C. § 506(a)(1)(A).
2. Willful infringement by reproducing or distributing, including by electronic
means, during any 180-day period one or more copyrighted works having a retail
value of $1,000, 17 U.S.C. § 506(a)(1)(B).
32 P.L. 109-9, 119 Stat. 218 (2005). For more information on this law, see CRS Report RS22042, The Family
Entertainment and Copyright Act of 2005, by Robin Jeweler.
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3. Knowingly making a work being prepared for commercial distribution available
on a computer network accessible to the public, 17 U.S.C. § 506(a)(1)(C).
Legislation in the 112th Congress
On May 12, 2011, Senator Klobuchar introduced S. 978, “a bill to amend the criminal penalty
provision for criminal infringement of a copyright, and for other purposes.” This legislation is
also commonly referred to as “the Commercial Felony Streaming Act” by its supporters and by
the press, although the bill has no official title. The legislation would authorize felony penalties
for willful, unauthorized streaming of commercially valuable copyrighted material (for purposes
of commercial advantage or private financial gain) and also expand the current felony offense of
unauthorized distribution of a pre-release commercial copyrighted work to include “public
performance” of such work as an additional basis for prosecution. As indicated earlier in this
report, the current law appears to authorize only misdemeanor penalties for unauthorized
streaming of copyrighted content for purposes of commercial advantage or private financial gain
and does not specifically prohibit pre-release public performance. The Senate Judiciary
Committee approved the bill on June 16, 2011, by voice vote, and Senator Leahy reported the bill
on June 20 without amendment.
Summary of S. 978, the Commercial Felony Streaming Act
Section 1(a) of S. 978 would amend the criminal code (18 U.S.C. § 2319(b)) provision that
specifies the penalties for the offense of willfully infringing a copyright for purposes of
commercial advantage or private financial gain. The bill would add to 18 U.S.C. § 2319(b) a new
paragraph that authorizes a maximum of five years imprisonment and/or a criminal fine of up to
$250,000 for an individual perpetrator (or $500,000 in the case of an organization that commits
the offense), in the following scenario:
1. The offense consists of 10 or more public performances by electronic means,
during any 180-day period, of 1 or more copyrighted works; and
2. The offense involves either of these financial thresholds:
a. The total retail value of the performance, or the total economic value of such
public performances to the infringer or to the copyright owner, would exceed
$2,500; or
b. The total fair market value of licenses to offer performances of those works
would exceed $5,000.
Section 1(b) of S. 978 would amend the criminal offense provision of the Copyright Act (17
U.S.C. § 506(a)(1)(C)) to insert the language “or public performance” in the paragraph that
describes the offense that the ART Act had established: willfully distributing a work “being
prepared for commercial distribution, by making it available on a computer network accessible to
members of the public, if such person knew or should have known that the work was intended for
commercial distribution.” Thus, the bill would establish criminal liability for someone who
willfully publicly performs a pre-release commercial copyrighted work (by making it available on
a computer network), an expansion of the current law that allows felony prosecution for pre-
release distribution of such work.
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Analysis
The Copyright Act defines the term “to perform or display a work ‘publicly’” to mean, among
other things, “to transmit or otherwise communicate a performance ... of the work ... to the public,
by means of any device or process, whether the members of the public capable of receiving the
performance ... receive it in the same place or in separate places and at the same time or at
different times.”33 The Register of Copyrights has determined that the act of streaming over the
Internet, “which transmits a performance [of a copyrighted work] to members of the public, fits
comfortably within” this statutory definition.34 Federal courts have also found that streaming of a
copyrighted work constitutes a public performance.35
Under the amendments proposed by S. 978 to the current criminal provisions of the Copyright
Act and related provisions in the criminal code, federal prosecutors would need to prove several
elements in order to obtain a conviction for unlawful streaming:
1. The existence of a valid copyright in the work in question.
2. The defendant infringed the copyright willfully.36
3. The defendant committed the infringement for purposes of commercial
advantage or private financial gain.
4. The defendant infringed by publicly performing the work by electronic means, in
excess of the following thresholds: 10 or more public performances by electronic
means, during any 180-day period, of 1 or more copyrighted works.
5. The offense involved either of these financial thresholds: (a) the total retail value
of the performance, or the total economic value of such public performances to
the infringer or to the copyright owner, would exceed $2,500; or (b) the total fair
market value of licenses to offer performances of those works would exceed
$5,000.
The new offense of public performance of a pre-release commercial copyrighted work proposed
by S. 978 involves the following elements: 37
1. The existence of a valid copyright in the work in question.
2. The defendant infringed the copyright willfully.
3317 U.S.C. § 101.
34 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Maria A. Pallante, Register of Copyrights).
35 See, e.g., United States v. ASCAP, 485 F. Supp. 2d 438, 442 (S.D.N.Y. 2007) (“Although ... the streaming of a
musical work does constitute a public performance, we conclude that the downloading of a digital music file, in and of
itself, does not.”).
36 To establish criminal intent, the government must prove that the defendant infringed the copyright willfully. See 17
U.S.C. § 506(a) ("Any person who willfully infringes a copyright shall be punished ....”). The Copyright Act provides
that “[e]vidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish
willful infringement.” 17 U.S.C. § 506(a)(2).
37 This listing is adapted from U.S. DEP’T OF JUSTICE, COMPUTER CRIME & INTELLECTUAL PROPERTY SECTION,
PROSECUTING INTELLECTUAL PROPERTY CRIMES (3rd ed., Sept. 2006), at 18, available at http://www.usdoj.gov/criminal/
cybercrime/ipmanual/01ipma.html.
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3. The defendant committed the infringement by the public performance of the
work (by making the work available on a computer network accessible to
members of the public).
4. The work was being prepared for commercial distribution.
5. The defendant knew or should have known the work was being prepared for
commercial distribution.
Arguments for the Legislation
Supporters of the legislation argue that S. 978 is necessary to adapt the law to technological
changes that facilitate the illegal and unauthorized dissemination of copyrighted work. Although
illegal downloading of copyrighted works remains a significant method of online copyright
infringement, illegal Internet streaming of copyrighted content is gaining in popularity.38 Yet the
current criminal copyright infringement statute provides only misdemeanor penalties for
violations of the public performance right (of which the act of streaming most strongly
implicates), compared to the felony penalties that it authorizes for violations of the reproduction
and distribution rights. This disparity creates an “impediment[] to effective prosecution” of
willful unauthorized streaming websites.39 The Register of Copyrights has endorsed the idea of
creating felony penalties for unauthorized streaming activity, arguing that “[a]s a matter of policy,
the public performance right should enjoy the same measure of protection from criminals as the
reproduction and distribution rights; prosecutors should have the option of seeking felony
penalties for such activity, when appropriate.”40 An organization representing copyright holders
explained the need for such legislative changes as follows:
At a narrow level, the issue of making illegal streaming a felony crime is simply a technical
clarification. Illegally disseminating other people’s works without their permission should be
punished the same way under law regardless of the technology used to accomplish such
dissemination.
On a grander scale, this issue is another phase in the battle between creators and lawful
distributors of copyrighted works on one hand, and on the other parasitic websites that
expropriate their property, diminish the compensation and pension and health benefits of
creators and workers, and harm communities across the United States by depriving them of
jobs and diminishing their tax revenues.41
Supporters also point out that the legislation is narrowly tailored to target rogue streaming
websites that intentionally profit from the illegal activity, and does not authorize prosecution of
38 Joint Statement from AFTRA, DGA, IATSE and SAG Commending Legislation to Make Illegal Streaming a Felony,
May 12, 2011, available at http://www.aftra.com/8574775862824FEAA64942552F510248.htm (“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. Unfortunately, the law has not kept pace
with these new consumer habits.”).
39 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Maria A. Pallante, Register of Copyrights).
40 Id.
41 Promoting Investment and Protecting Commerce Online: The ART Act, The NET Act, and Illegal Streaming:
Hearing Before the Subcomm. on Intellectual Property, Competition and the Internet of H. Comm. on the Judiciary,
112th Cong., 1st Sess. (2011) (written statement of Sandra Aistars, Executive Director, Copyright Alliance).
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those who stream copyrighted content without deliberately seeking commercial advantage or
private financial gain or those who merely watch the content (as opposed to those who made the
content available for such viewing).42 The sponsor of S. 978 has asserted that the bill “gives
police the tools to only go after [the] worst of the bad actors” who are infringing copyrights via
unauthorized streaming, rather than minor or accidental infringers.43 A cosponsor of the bill also
has claimed that S. 978 “does not criminalize YouTube.”44
Criticisms of the Legislation
Compared to supporters of the bill, some observers have worried about the “potential unintended
consequences” of S. 978. For example, individuals who embed infringing YouTube videos on
their blogs and other websites that may contain online advertising alongside the videos may be
targeted by S. 978, as such use of advertising may be evidence of “private financial gain” from
the infringement, thus supporting a criminal felony prosecution charge if the bill passes into law.45
Another critic has asserted that “when law enforcement wants to charge someone with a felony
where there’s no obvious match, they’ll often stretch laws like this to find something they can
use. And this extension of criminal copyright law to include a ‘public performance’ seems ripe for
misuse.”46
Others question how the quantitative and monetary thresholds imposed by the bill might be
interpreted by the courts:
[T]here is no way of knowing how the dollar amounts in the bill will play out in the real
world. It will be difficult for courts to determine how much each public performance would
hypothetically be worth to a copyright holder, and even more difficult to determine the “the
total fair market value of licenses to offer public performances”—especially when some
copyright owners refuse to license their works for such uses.47
Some point out that for streaming activities, it is unclear who the “public performer” is and thus it
is unclear who may be liable for felony prosecution under S. 978: the person who uploads the
video and makes it available for public viewing, or the user who views the content by clicking on
the “play” icon?48 Even assuming that the public performer is the streamer (the person who
42 Joanna Anderson and Seth Stern, Copyright Infringement Bill, Extension of FBI Director’s Term Backed by Senate
Panel, Congressional Quarterly Markup & Vote Coverage, June 16, 2011.
43 Nathan Pollard, Senate Panel Mulls Online Streaming Bill, Takes No Vote Amid Lingering Concerns, June 15, 2011,
BNA’S ELECTRONIC COMMERCE & LAW REPORT (quoting Senator Klobuchar).
44 Joanna Anderson and Seth Stern, Copyright Infringement Bill, Extension of FBI Director’s Term Backed by Senate
Panel, Congressional Quarterly Markup & Vote Coverage, June 16, 2011.
45 Mike Masnick, People Realizing New Anti-Streaming Criminal Copyright Bill Could Mean Jail Time For Lip
Synchers, at http://www.techdirt.com/articles/20110609/23171814649/people-realizing-new-anti-streaming-criminal-
copyright-bill-could-mean-jail-time-lip-synchers.shtml#c871.
46 Id.
47 Liz Allen, Making Sense of the Streaming Felony Bill, July 18, 2011, at http://futureofmusic.org/article/article/
making-sense-streaming-felony-bill; see also Promoting Investment and Protecting Commerce Online: The ART Act,
The NET Act, and Illegal Streaming: Hearing Before the Subcomm. on Intellectual Property, Competition and the
Internet of H. Comm. on the Judiciary, 112th Cong., 1st Sess. (2011) (written statement of Maria A. Pallante, Register of
Copyrights) (“It is not clear to us at this time how easy it would be to ascertain the total retail value of unauthorized
streams, or how easy it would be to ascertain how many public performances were made by an unauthorized
streamer.”).
48 Joe Newman, The Many Murky Areas of Senator Klobuchar’s “Anti-Streaming” Bill, July 6, 2011, Public
(continued...)
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uploaded the content), it is unclear, some critics contend, whether the bill’s threshold of “10 or
more public performances” refers to 10 unique views of the work by end users, or whether the
streamer must post the content 10 separate times.49
In the cable and satellite television industry, a business dispute has arisen over whether existing
retransmission agreements between cable and satellite companies and copyright holders allow the
companies to stream copyrighted content to their subscribers. The cable television companies
have raised concerns that S. 978 might expose themselves to felony penalties for such
streaming.50 However, the sponsor of S. 978 has stated that “[p]arties are entitled to have
disagreements about the scope of their contracts, and they should not be criminally prosecuted for
their legitimate disputes.”51 Nevertheless, it has been speculated that “copyright holders may use
the threat of prosecution as leverage against broadcasters who transmit content pursuant to a
license under dispute.”52
Finally, some critics question believe limited government resources should not be used to
prosecute operators of unauthorized streaming websites, arguing that “illegal public performance
is the kind of economic concern that can be effectively managed through existing civil
remedies.”53
Author Contact Information
Brian T. Yeh
Legislative Attorney
byeh@crs.loc.gov, 7-5182
(...continued)
Knowledge, at http://www.publicknowledge.org/blog/many-murky-areas-senator-klobuchar%E2%80%99s-anti-str.
49 Id. (offering an analogy that “if you put on a juggling show in the middle of the street and 10 people see it, that
doesn’t mean that you did 10 shows”).
50 Nathan Pollard, Witnesses Urge Congress to Update Law Penalizing Streaming of Copyrighted Content, June 8,
2011, BNA’S ELECTRONIC COMMERCE & LAW REPORT.
51 Joanna Anderson and Seth Stern, Copyright Infringement Bill, Extension of FBI Director’s Term Backed by Senate
Panel, Congressional Quarterly Markup & Vote Coverage, June 16, 2011.
52 Abigail Phillips, Felony Penalties Proposed for “Illegal Streaming”: Senate Bill 978, June 23, 2011, Electronic
Frontier Foundation, at https://www.eff.org/deeplinks/2011/06/felony-penalties-proposed-illegal-streaming-senate.
53 Id.
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