Obama Admin Wants to Make Illegal Streaming a Felony

Obama Admin Wants to Make Illegal Streaming a Felony

Intellectual Property Czar Victoria Espinel recommends that “Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances,” and that law enforcement be given wiretap powers for intellectual property crimes.

Ever since Vice President Joe Biden, a former member of the Congressional International Anti-Piracy Caucus, convened a “first of its kind” piracy summit with Hollywood CEOs, music industry execs, and legal experts in attendance back in late December 2009, the Obama Administration has been working overtime to find ways to “combat piracy in this rapidly changing technological age.”

Intellectual Property Czar Victoria Espinel, whose cabinet-level position was created by the Prioritizing Resources and Organization for Intellectual Property Act back in 2008, first outlined what those priorities should be in her June of 2010 “Joint Strategic Plan On Intellectual Property Enforcement.

That plan included taking a harder stance against sites that stream copyrighted material, but US law currently considers streaming a “public performance.” A “public performance” is a licensing issue and not a felony.

The Obama Administration plans to remedy the situation as outlined in it’s “White paper on Intellectual Property Enforcement Legislative Recommendations” it recently submitted to Congress.

“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,” it reads. “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.”

Espinel also asks that law enforcement be given additional authority to seek a wiretap in intellectual property crimes.

“Title 18, United States Code, Section 2516 contains an extensive list of offenses for which the U.S. Government is authorized to seek wiretap authority from a court to obtain evidence of those offenses, including for economic espionage (18 U.S.C.§ 1831) and theft of trade secrets (18 U.S.C. § 1832). See 18 U.S.C. § 2516(1)(a) (listing offenses under chapter 90),” she writes. “Omitted from this list are criminal copyright (17 U.S.C. § 506(a)(1), 18 U.S.C. § 2319) and criminal trademark offenses (18 U.S.C. § 2320). Wiretap authority for these intellectual property crimes, subject to the existing legal protections that apply to wiretaps for other types of crimes, would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises.”

This last demand would likely make it easier for the Feds to inspect an Internet user’s traffic for sign of infringement like data packet sniffing.

It’s not clear how much of an effect any of these additional tools would have, especially considering that most infringing sites are located overseas. What good is a felony conviction for an admin of an illegal streaming site based in the Ukraine or China?

Expanded wiretapping powers could help discover and prosecute intellectual property crimes, but aren’t current laws already well-suited for those committed within the reach of US law enforcement?

Apparently no law is ever strong enough for US copyright holders.

Stay tuned.

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