Dept. of Justice Looks to Make Illegal Streaming a Felony

A Department of Justice office told a House Judiciary hearing Thursday he supports a felony penalty for illegal streaming.

Noting the rise of streaming, David Bitkower, Acting Deputy Assistant Attorney General, Criminal Division, said tougher penalties would reflect the reality of today's media consumption. "Misdemeanor penalties are real, but when you look at the massive profits that infringing websites can make from streaming media, misdemeanor penalties are simply not sufficient to deter those large-scale infringers."

While the illegal downloading of copyrighted works is a felony under copyright law, illegal streaming violations are treated as misdemeanors. In more technical terms, copyright law treats differently the rights that cover downloading (reproduction and distribution) and streaming (public performance).

The disparity between public performance and other rights has been discussed before. In recent years, the Copyright Office and Attorney General Eric Holder have weighted in on the issue. In 2011, the White House recommended that illegal streaming be classified as a felony. Last year, a green paper from the Department of Commerce's Internet Policy Task Force also called for illegal streaming to be punished as a felony.

Bitkower's suggestion came during a hearing titled "Copyright Remedies" held by the same Subcommittee on Courts, Intellectual Property and the Internet that has recently held hearings on licensing and copyright issues pertaining specifically to the music business.

Illegal streaming is likely more of a problem with video than music. Bitkower cited research that indicates bandwidth consumed by illegal video streaming grew 470% between 2010 and 2012. But in citing players in the growing, legitimate streaming marketplace, Bitkower named popular music services Pandora and Spotify as well as leading video streaming services YouTube, Netflix and Hulu.

The new law would target commercial piracy rather than individuals. In his prepared remarks, Bitkower specified the law would apply only to "unauthorized public performances conducted for commercial advantage or private financial gain."