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Streaming Legislation

Earlier this spring, Victoria Espinel, the U.S Intellectual Property Enforcement Coordinator, produced a “White Paper” (see May 11th blog) that detailed a number of intellectual property enforcement recommendations to Congress.   One of those recommendations: Congress should “clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances.”  

In response to the recommendations, Sen. Klobuchar (D-MN), Sen. Cornyn (R-TX), and Sen. Coons (D-DE)have co-sponsored S. 978, which would amend 18 U.S.C. §2319 (the section of the federal criminal code that defines the potential penalties for criminal infringement) and 17 U.S.C. §506  (the section of the Copyright Act that defines “criminal infringement”) to include streaming within the definition of a felony.

While EDUCAUSE does not condone online infringement of copyrights, the legislation as currently written presents significant challenges to our campuses where legal streaming via computer networks is a normal part of the teaching and learning enterprise.  Additionally the language is sufficiently vague and puts the onus of legal proof on the user.   

S.978 would expand the current definition of “criminal infringement” to include streaming (which the bill refers to as “public performance”).  Anyone who engages in the unauthorized public performance of a copyrighted work could be criminally charged, as long as (a) the “public performance” involves making the work available on a publicly-accessible computer network and (b) the work consists of ten or more “public performances by electronic means” in any 180-day period that could constitute commercial gain for the infringer.  Previously, the statutory definition of “criminal infringement” included only reproduction (i.e., copying) or distribution (i.e., actually transfer or sale of a copy) of a copyrighted work. 

All three original co-sponsors are members of the Senate Judiciary Committee, which has jurisdiction over IP-related legislation. The Chairman of that Committee, Sen. Leahy (D-VT), has expressed support for vigorous enforcement of copyright infringement. A hearing was held in June.  The legislation is also supported by the RIAA, MPAA, Independent Film and Television Association, among others.  Opponents include civil liberty and public interest groups including the Electronic Frontier Foundation.

As of this writing, it is unclear whether or not the bill will come to a floor vote.  EDUCAUSE will continue to monitor and report on this legislation.

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