By Eric W. Dolan
Tuesday, August 6, 2013 17:37 EDT

The U.S. Department of Commerce wants to crack down on the unauthorized streaming of video and audio content by reviving a provision of the Stop Online Piracy Act.

In a report released last week, the Commerce Department’s Internet Policy Task Force called for the unauthorized streaming of copyrighted works to become a felony.

“This recommendation was disappointing,” Corynne McSherry, the Intellectual Property Director at the Electronic Frontier Foundation, told Raw Story via email. “Legacy content industries need to learn, at last, that they don’t need new enforcement tools, they need competitive business models. As we learned at last week’s Judiciary Committee hearing, creative people are succeeding in the digital economy despite, not because of, copyright restrictions. New copyright penalties won’t lead to more compensation for anyone but lawyers.”

The Internet Policy Task Force report noted that streaming content without permission has been considered a public performance violation rather than copyright infringement, and therefore is a misdemeanor rather than a felony. Streaming has been considered “performing” a copyrighted work rather than reproducing or distributing a copyrighted work.

“While the willfully infringing reproduction and distribution of copyrighted works can be punished as a felony, willful violations of the public performance right are punishable only as misdemeanors,” the report stated.

“This discrepancy is an increasingly significant impediment,” the report continued. “Since the most recent updates to the criminal copyright provisions, streaming (both audio and video) has become a significant if not dominant means for consumers to enjoy content online. The lack of potential felony penalties for criminal acts of streaming disincentivizes prosecution and undermines deterrence.”

Making unauthorized streaming a felony was proposed back in 2011 by the White House’s Office of the U.S. Intellectual Property Enforcement Coordinator. Sens. Amy Klobuchar (D-MN), John Cornyn (R-TX) and Christopher Coons (D-DE) introduced legislation to that effect later that year. A provision to make unauthorized streaming a felony was also included in the controversial SOPA legislation in 2012.

The EFF had previously described making unauthorized streaming a felony as a heavy-handed way to deal with the problem.

“We have to question the judiciousness of devoting spare government resources to prosecuting this kind of activity. It seems to us that illegal public performance is the kind of economic concern that can be effectively managed through existing civil remedies. Moreover, criminal copyright prosecutions need to show all the elements of civil copyright infringement, something civil courts are traditionally much better versed in,” EFF’s Abigail Phillips said in 2011.

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