About a month ago, Congress passed an omnibus government funding and COVID-19 relief bill to help the economy recover from the ongoing COVID-19 pandemic. Tucked away in that 5,000-page bill, however, is the “Protecting Lawful Streaming Act,” a new law that makes it a felony for companies to host or provide illegal streams for copyrighted material.
According to Senator Thom Tillis, who authored the bill, the Protecting Lawful Streaming Act targets only “commercial, for-profit” streaming services that allow people to stream copyrighted materials without permission or compensation, which the government refers to as “piracy.” Senator Tillis has released a statement that the law will be aimed at “large-scale criminal streaming services” and “will not sweep in normal practices by online service providers, good faith business disputes, noncommercial activities, or in any way impact individuals who access pirated streams or unwittingly stream unauthorized copies of copyrighted works. Individuals who might use pirate streaming services will not be affected.”
Unfortunately, however, the language in the statute would allow prosecutors and investigators to target a much broader range of conduct than Senator Tillis may have anticipated. It wouldn’t be the first time that a law has grown beyond its intended purpose.
According to the text of the “Protecting Lawful Streaming Act,” 18 U.S.C. 2139C:
“It shall be unlawful for a person to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that–
(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law
(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or
(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.”
If convicted, a defendant faces a fine and up to 3 years in prison if it is their first offense, 5 years in prison if the offense involved one or more works being prepared for commercial public performance and the person knew or should have known it was being prepared for commercial performance, and 10 years if it is the person’s second or subsequent conviction. Previously, unauthorized streaming was only a misdemeanor, while distributing or reproducing physical copies were felony offenses. Supporters of stricter copyright laws called the lack of felony charges for streaming “the streaming loophole.”
Despite the reassurances from politicians that the law will be limited to big companies hosting illegal streams, there is nothing in the law limiting prosecutions to companies. Individuals can be prosecuted for hosting illegal streams too, and given that many streams are hosted by individuals, they likely will be.
The law is also written in broad language–what is a “commercially significant purpose”? Where does the fair use doctrine come in, which allows individuals to use copyright materials without permission for certain purposes like news, education, or parodies? For example, many individuals stream movies, shows, or sports games for others to view, but they also include additions such as their own commentary or edits. Will they be targeted now? Time will tell, as will the new Biden administration’s approach to copyright law and the way courts interpret this broadly-worded bill.
Our firm has significant experience assisting those charged or investigated for criminal copyright infringement, and we will continue monitoring the government’s efforts to target people and companies they suspect of illegal streaming.