by David Newhoff for Content Cafe — February 11, 2021
After the violent assault on the U.S. Capitol on January 6, it is easy to forget that we also had a bit of legislative drama in the waning days of 2020, when former President Trump put the omnibus spending bill, generally called the COVID relief package, on hold over the Christmas break. That leviathan legislation contained two copyright bills attached as riders in mid-late December. One bill was the small-claim copyright alternative provision called the CASE Act; but of likely greater interest to the global creative community is the Protecting Legal Streaming Act (PLSA), which elevates the crime of enterprise-scale piracy by means of streaming from a misdemeanour to a felony under U.S. law.
Partly because the PLSA was attached to must-pass legislation, and partly because the word felony is an eye-opener, we saw some of the usual anti-copyright crowd allege on social media that Congress “caved to Hollywood” on this issue and “snuck” the bill into passage. Some of these same voices also tried to frighten people into assuming that an individual receiving a pirate stream might face up to 10 years in prison. But, of course, none of that is accurate.
Although “Hollywood,” if we use that term generically, certainly has an interest in illegal streaming, changing the criminal code simply updates traditional legal doctrine to meet the realities of the digital age. The PLSA targets for-profit pirate operators, not their users. And if you are reading this outside the U.S., then for-profit, pirate streaming is very likely already the equivalent of a felony in your country. For instance, under Australian copyright law, unauthorised streaming would infringe the right of “communication of a work to the public,” and this can carry a penalty of up to five years in prison, if it is done “at commercial scale” and has “substantial prejudicial impact on the owner of the copyright.” For comparison, any crime that carries a potential sentence longer than one year is generally considered a felony in the United States.
Under U.S. copyright law, streaming content is considered a public performance of a work, and in the pre-digital age, U.S. criminal code held that infringement by means of public performance was a misdemeanour offence. In an analog market, public performance could only do so much damage, while mass reproduction and distribution (e.g. maintaining a warehouse of counterfeit copies for sale) were subject to felony charges commensurate with the nature of the crime.
Naturally, as online piracy improved with better technology, it became clear that illegally “performing” tens of thousands of works for tens of millions of viewers can do far more damage than the most robust counterfeiter ever could in the pre-digital age.
Thus, with the PLSA of 2020, Congress closed the “streaming loophole” and generally achieved statutory parity with its trading partners in Europe, Australia, Singapore, et al. In fact, Article 61 of the TRIPS agreement of 1995, to which all WTO members are signatories, requires that:
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
Although America’s felony streaming update is not especially earth-shattering as a matter of legal doctrine, it should prove to be highly significant for producers of works worldwide because reducing piracy anywhere is good for the global production ecosystem. As Ruth Vitale of the advocacy organisation CreativeFuture puts it, “Any inroads we can make to impress upon lawmakers the severity of piracy by means of streaming is a step in the right direction for all creatives. Motion picture producers, in particular, understand that global production is interdependent. U.S. filmmakers depend on international pre-sales to help finance their projects, and international producers depend on access to the American market. Piracy anywhere in the ecosystem drives budgets down, forcing producers to work outside their home markets, which threatens solid, skilled-labor jobs.”
Although many pirate sites operate outside the jurisdiction of U.S. law enforcement, we have continued to see intermittent attempts to launch domestic illegal streaming services, partly due to the “streaming loophole.”* Further, the PLSA may prove effective in curtailing the proliferation of piracy boxes (Kodi Boxes) that are used to stream material illegally by accessing infringing works stored on multiple pirate servers around the world. Finally, because the U.S. is the largest exporter of multi-media entertainment, and has a broad enforcement reach in collaboration with the partners with whom it shares the production ecosystem, the PLSA puts sharper teeth into future investigations where extradition to U.S. courts may be the remedy.
Despite some of the chatter in the blogosphere, the Protecting Legal Streaming Act was not secret legislation shoehorned into a relief package at the request of the big Hollywood studios. It was a long overdue update to our criminal code, most ardently sought by the independent producers who do not have the kind of profit margins that mitigate the worst effects of piracy.
*See stories about Jetflicks and GearsTV, both attempting to exploit perceived “gray areas” in U.S. law.
David Newhoff is a writer and artists’ rights advocate living in New York. He writes about the digital-age and copyright issues on his blog The Illusion of More.