Senate Judiciary Upgrades Streaming Copyrighted Video to a Felony

It’s easy to click a link on YouTube and find yourself watching copyrighted content. And with an ocean of legal multimedia clips available online, you could easily not even notice your mistake. But new legislation in the Senate might land you a felony conviction―and even hard time―for your accidental transgression, according to copyright law experts.

Last Thursday the Senate Judiciary Committee approved S. 978, the Commercial Felony Streaming Act (CFSA), which would elevate the unauthorized streaming of copyrighted video content from a misdemeanor to a felony. The bill, which was introduced by Amy Klobuchar (D-Minn.), John Cornyn (R-Tex.) and Christopher Coons (D-Del.), legislates that ten or more “public performances” of a streaming, copyrighted online video over a 180-day period can lead to up to five years of prison time. The bill also stipulates that the illegal content must be worth more than $2,500 retail or total $5,000 in licensing fees.

Art Neill, executive director of consumer advocacy organization New Media Rights, holds that the bill is an attempt to pacify the entertainment industry by scaring consumers into compliance. Ambiguous wording in the bill, he says, leaves four groups open to criminal charges: 1) The websites which host copyrighted content, like YouTube, or sites which offer recordings of feature films, 2) Individuals who upload copyrighted content onto public video sharing sites, 3) Internet users who watch copyrighted content, and 4) Internet users who post links or embed copyrighted content on blogs or social media websites.

The bill’s advocates have downplayed the third and fourth groups as targets, but Neill remains suspicious. He argues that existing legislation like the Digital Millenium Copyright Act is more than adequate to deal with digital copyright infringement issues.

"My biggest problem with this is that they're saying they want to go after people who are making a living streaming copyrighted content,” Neill said. “I don't understand why you can't go after those people with existing copyright laws. That's when you start wondering about their motives, you start wondering why this is really out there."

The legal definition of a public performance is itself open to interpretation, Neill explains. A public performance can be a physical performance, like a play, or a transmission, like a radio broadcast or a stream of online content. How public performance is interpreted in legal practice, he says, will determine the extent to which new bills like CFSA will change the online landscape.

"I think there are some definitional problems with what I'm seeing, and that worries me, especially when you're going to make it a felony,” Neill said. “Not having clarity when you're going to have a five-year prison term, that's a problem.”

Neill is also concerned about what experts call a “chilling effect,” which is when the fear of overzealous litigation keeps innovators from rolling out new features and technology.

CFSA has garnered support from the powerful entertainment industry as well as the Obama Administration, which has planted itself firmly on the side of copyright holders. In March, the White House released a 17-page whitepaper which recommends that Congress close the gap between streaming and peer-to-peer legislation with a bill like CFSA, by making it a felony to stream unauthorized copyrighted content.

Sponsors of the bill maintain that their goal is to punish criminals who are turning a profit on copyrighted content. “This isn’t about individuals or families streaming movies at home,” Klobuchar said in an email. “It’s about criminals streaming thousands of dollars worth of stolen digital content and profiting from it.”

Jon Christian is a staff writer with Campus Progress. Follow him on Twitter @Jon_Christian.

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