Stronger Protections for Content Will Keep Streaming Pirates At Bay
In the 1880s and 1890s, piracy of plays and operettas was rampant across America, leading to a situation where it was nearly impossible for a playwright or composer to earn a living at their trade. Congress looked at this problem and understood that the solution was not to go after the patrons of these pirate theaters. Instead, in 1897 Congress stiffened the penalties for piracy by making it a federal crime to put on a theatrical production for profit without paying the owner of the copyright in the show a federal crime.
Fast forward to today, and the theater is increasingly at home, especially considering the impact of Covid, but also more generally as TVs get bigger and the legitimate streaming marketplace becomes more crowded. With streaming increasingly the future, Congress recently plugged a gap in the law regarding criminal liability for unlawful performance of copyrighted material. It is now a federal crime to run a pirate streaming service for profit, the same as it has long been a federal crime to publicly perform copyrighted works for profit in a host of other settings.
The new law is narrowly targeted, and is specifically focused on illicit streaming sites. Under the new law, it is a criminal act to “willfully” and for financial incentive run such a service. In order to lead to criminal liability, the service must be “primarily designed or provided for the purpose of” streaming copyrighted works without permission; have “no commercially significant purpose or use other than” illicit streaming of copyrighted works; or be “intentionally marketed by or at the direction of that person to promote” that the service can be useful to stream copyrighted works unlawfully. In other words, unless a service is primarily or solely designed for streaming copyrighted works illegally, or advertises that it can be used for such purposes, no criminal liability will attach.
The need to make operation of a criminal streaming enterprise a felony has long been apparent, and the first such proposal was introduced in the Senate almost a decade ago in 2011. As the decade progressed the issue only became more urgent, and in 2019 the Department of Justice informed the Senate Judiciary Committee’s Subcommittee on IP that the remedies currently available against the operators of large commercial illicit streaming sites “may be insufficient to deter operators of such sites,” especially given the “enormous profits” possible from operating such services.
As America has increasingly turned to streaming as a primary source of entertainment, a new bill, the “Protecting Lawful Streaming Act,” was announced by Sen. Thom Tillis, cosponsored by a bipartisan coalition of Senators. Congress made this long-contemplated legislative fix part of the Consolidated Appropriations Act, passed December 27, 2020.
The new law had some critics in the press, but in truth even groups like Public Knowledge which have generally been critical of efforts to stiffen penalties for copyright infringement acknowledged that the new law “is narrowly tailored and avoids criminalizing users,” and “also does not criminalize streamers.” Indeed, the law is specifically targeted at those who would operate services to share copyrighted material by digital streaming without permission or payment to the owners of that material. In other words, the law is specifically focused on criminal enterprises, and has been drawn in such a way that it will avoid ensnaring anyone else.
As more resources and jobs go into producing content for streaming, it is more important than ever to make sure that these industries are secure in their knowledge that their hard work — and livelihoods — aren’t being put in jeopardy by criminal enterprises who aim to appropriate the hard work of these creative professionals. People can keep making Baby Yoda memes without fear of this new law, but those seeking to rebroadcast shows like the Mandalorian without compensating the people who brought those characters to life, may find that the law has more powerful tools for protecting creators from online theft by illicit streaming services.
Zvi S. Rosen is an assistant professor at Southern Illinois University School of Law.