Image: Brownlee Dam by WaterArchives.org on Flickr
Do you stream content from the Internet?
Could it be that you fall under the category of users involved in an illegal streaming? Well, if you do and are also identifiable as an US resident, this blog article may contain some bad news for you.
Because Victoria Espinel, Obama administration’s IP Enforcement Coordinator, has recently published a white paper on legislative recommendations that asks lawmakers to declare streaming a
and hence a felony.
Not exactly the sort of good news blogs usually provide, huh?
When I first saw the story at Ars Technica, my first reaction was to ask
Who Needs A Change In Legislation?
Then I read the white paper and found that Ms Espinel’s recommendations very clear:
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.
It turns out that the current US copyright framework is to some extent ambiguous as to whether streaming should be considered a distribution or performance of a work. This ambiguity results in a loophole which Ms Espinel is now proposing to fill.
This is strange, because the US have ratified the
WIPO Copyright Treaty
(WCT) and implemented it by the Digital Millenium Copyright Act (DMCA). The US nevertheless omitted to introduce the so called “right of communication to the public” or also known as the “making available right” in their legislation. Ms Espinel would not have the problem now, had the Clinton administration taken care back in 1998.
Having said that, one might ask how the legislation of the
does classify streaming?
Well, the EU has also implemented the WCT and introduced the “making available right” in its Info Society Directive (2001/29/EC).
This means that the legislations of the single member states define streaming as either a broadcast (in the case of point to multipoint) or a communication to the public (in the case of point to point or the on demand use).
Either way and even though it is so popular among Internet users, (illegal) streaming falls foul of the law on copyright.
However, what is
anyway supposed to mean?
Right holders speak of illegal streaming each time when their content is distributed, performed, broadcast or made available on the Internet without said right holders’ permission.
It seems, however, that streaming has become an important part of our online consumer behaviour. We consume content every day and the rise of new technologies has made this type of consumption quite convenient. The reason why some users are lured into illegal offerings basically lies in that they are not offered legally sound ones.
In that respect, right holders should reconsider their business models and keep pace with their “potential” customers and not attempt to dam the streaming instead.
What is your opinion on Ms Escivel’s recommendation? How is streaming regulated in your jurisdiction and what impact does this regulation have on illegal or lawful offerings?