“Ten Strikes” Copyright Infringement

ten strikes copyright infringement bill
What’s the deal with the proposed “ten strikes” copyright infringement law?

The Internet is teeming with websites that illegally stream TV shows and movies. 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 ISP blocking actions. But politicians hope to change that with a proposed new law — the so-called “Ten Strikes Copyright Infringement Law.”

Even though it’s possible to convict someone for running a nefarious video streaming website, it rarely happens. Civil litigation is the more common route.

But why?

Online Copyright Infringement Cases: Criminal v. Civil

The preference for civil litigation hinges on this regulation:

“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).”

For prosecutors to land a five year sentence and $2,500 fine, the offense must include the reproduction or distribution, during a 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 law’s current wording, streaming video is arguably neither a copy nor a phonorecord. Therefore, a person who distributes streaming video online is likely to get a maximum one year sentence and/or $2,500 fine.

Enter Senate Bill 978 — The So-Called “Ten Strikes Copyright Infringement Bill”

Senate Bill 978 (“S. 978”) is an act to “amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.” 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 the proposed ten strikes program, the law wouldn’t require that both the retail value exceed $2,500 and ten or more works were compromised. Instead, either exceeding $2,500 in retail value, or infringing on ten or more works, would trigger the sentence. The 180-day period applies, regardless. If the fair market value of infringed license exceeds $5,000, the 180-day limit parameter would be waived, and penalties 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 a multi-million-dollar advertising operation on the side — or otherwise gaining a commercial advantage from their infringement — these penalties won’t apply.

For more in-depth advice on copyright infringement and the penalties involved, contact an experienced copyright lawyer.

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