The Internet is full of websites that stream TV shows and movies without the permission of copyright owners. Usually, these websites are shut down through a combination of DMCA takedown notices, assistance from law enforcement (as was the case in Operation in Our Sites), and blocking actions taken by ISPs. But politicians hope to change that with a proposed new law — the so-called “Ten Strikes Copyright Infringement Law.”
However, even though it’s possible to convict someone for criminally running a nefarious video streaming website, it’s rare to do so. Civil litigation is most often the preferred choice.
Online Copyright Infringement Cases: Criminal v. Civil
The preference for civil litigation in online copyright infringement cases has to do with this section of the law:
“Any person who willfully infringes a copyright shall be punished… if the infringement was committed-for purposes of commercial advantage or private financial gain” (17 U.S.C. § 506).”
In order for prosecutors to land a five years of sentence and $2,500 fine, the offense must include the reproduction or distribution, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500.
The thing is, based on the current wording of the law, streaming video is arguably neither a copy nor a phonorecord. Therefore, a person who distributes streaming video online is likely only going to get a maximum of one year of imprisonment and/or $2,500 fine. One might argue that since a copy can end up on the viewer’s computer in their cache, the current law already applies as it is a “reproduction,” but one might also argue that the stream isn’t saved and the case is more of a “public performance.”
Enter Senate Bill 978 — The So-Called “Ten Strikes Copyright Infringement Bill”
That’s where Senate Bill 978 (“S. 978”), an act to “amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes,” comes into play. Clearly, legislators think there might be a problem with the distinction between a reproduction or distribution, and a public performance, as it applies to video streaming websites.
S.978 would attach the same penalties to video (or audio) streamers. A person will receive five years behind bars and $2,500 penalty if their infringement:
- Consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works, and the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
- The total fair market value of licenses to offer performances of those works would exceed $5,000.
Note that under this proposed ten strikes copyright infringement law, the law would not require that both the retail value exceed $2,500 and it be a consequence of infringing on ten or more works. Instead, either exceeding $2,500 in retail value, or infringing ten or more works, would trigger the sentence. The 180-day period still applies.
There would also be another provision, which would invoke the higher sentence if the fair market value of licenses to offer performances of the infringed works would exceed $5,000. This would not be subject to a 180-day limit, and would continue building against the accused even after 180 days from the original infringement.
It should be noted that although people have raised concerns that children could be subject to criminal penalties for youthful indiscretions, unless your kid is running an advertising operation on the side or otherwise gaining a commercial advantage from their infringement, these penalties won’t apply. The offense politicians seek to punish through this law requires that the act is done for “commercial advantage or private financial gain.”
This is just a general breakdown of what the penalties are and might become if this ten strikes copyright infringement bill becomes law. For more in-depth advice on copyright infringement and the penalties involved, contact an experienced copyright lawyer.