Recently, the idea of felony streaming once again reared its ugly head. Making streaming copyright infringement a felony is a terrible idea and an example of backward thinking that creates further rifts between tech and entertainment at a time when these two sectors are not only reliant upon one another, but melding. As some may recall, this kind of backward thinking famously and furiously failed before when it was a key part of the ill-conceived effort known as SOPA-PIPA (Stop Internet Piracy Act / Protect IP Act). So strong was the backlash against these would-be laws and their breathtaking overreach, to this day, the term “SOPA-PIPA” sends chills down the spines of lawmakers.
And rightly so. When it was first proposed in 2011, millions of Internet users demanded it be shut down. YouTubers, on the forefront of the new entertainment industry, worried that uploading images of video games or parts of songs could suddenly land them in jail. Wikipedia, Google and an estimated 7,000 other websites coordinated a day-long service blackout in protest against the bill. One petition drive attracted seven million signatures. Companies and organizations that supported the legislation were boycotted. Even the White House’s Senior Intellectual Property Enforcement official at the time, responding to a We The People Petition against the legislation, vowed to oppose any legislation that would chill innovation and free expression. Much to the relief of many lawmakers, the bill was quietly set aside.
Or so we thought. Today, the idea is getting a second wind. In a letter to Daniel Marti, the Obama administration’s Intellectual Property Enforcement administrator, two powerful Hollywood unions suggested reviving the idea of streaming infringement a felony. They complain that while file sharing copyrighted material is considered a felony, streaming is just a misdemeanor. They call on the administration to bring the issue back to forefront of the debate around intellectual property and impose much stricter penalties than what’s currently in-place, known as statutory damages.
The issue also came up at a recent congressional panel I spoke on about copyright infringement. The event was part of a listening tour by the House Judiciary Committee aimed at collecting more information in order to update and rewrite the Copyright Act. Susan Clearly, the general counsel for the Independent Film and Television Alliance advocated for new legislation in favor of felony streaming.
It is perplexing as to why the Judiciary Committee would even consider taking up an issue like felony streaming while it is simultaneously addressing over-criminalization through bipartisan legislative efforts such as this slate of bills it marked up just last week.
Toughening up the rules around copyright infringement through felony streaming legislation, though, is not the answer to Hollywood’s ills. Legitimate streaming services that, but for their best efforts, violate copyright law already are subject to $150,000 in statutory damages per infringed work. That penalty is more than big enough to make incumbents and start-ups do their best to ensure that no content streaming on their sites violates copyright.
But the key idea to focus on is “best efforts.” A streaming platform is incentivized to make its best-faith effort on an ongoing basis to ensure that all copyright holders are getting paid but very often the records of who holds those copyrights are unclear. A song might have had 12 writers on it but only ten are listed. Should an executive at a music streaming company be penalized with a giant fine, or jail time, because he didn’t know about those two extra writers?
This isn’t a problem that will be solved with bigger hammer; it’s a problem that will be solved by entrepreneurs and content creators standing together to form a strong wall. Instead of battling each other over copyright, Hollywood and Silicon Valley need to find ways to start working together. The biggest problem around copyright infringement is piracy and the best cure for piracy is innovation, so it’s key to remember that while content is king, it’s king because it can be distributed. Content creators and content distributors need to understand that they’re not enemies – they’re essential to each other’s success.
Piracy was killing the music industry. Now, thanks to the likes of Pandora, Spotify, iTunes and iHeartRadio, money is once again flowing to musicians. The nonprofits that collect royalties for songwriters and publishers both announced record revenue numbers this year thanks to digital streaming. When listeners pirate music, there are no royalties to pay. Digital streaming is rebuilding the music industry.
And while the TV and film industries certainly have their beefs, the more legitimate streaming opportunities that are out there the less people will pirate. Make it easy and affordable for people to pay for content and they will. Just look at the success of iTunes, Netflix and HBO GO.
For Hollywood to pretend that streaming isn’t the future is just backwards thinking. Casting a wide net that punishes legal, well-intentioned entrepreneurs alongside full-fledged pirates is a mistake. Instead, Hollywood and Silicon Valley need to focus on collaboration and cooperation in order to take the profit out of piracy. By treating each other as teammates instead of adversaries, the bad actors can be rooted out to everyone’s benefit.
Montgomery is executive director of CALinnovates, a technology advocacy organization based in California.