Infringement by Streaming might become a Felony

The White House today proposed sweeping revisions to U.S. copyright law, including making "illegal streaming" of audio or
video a federal felony and allowing FBI agents to wiretap suspected infringers.

In a 20-page white paper (PDF), the Obama administration called on the U.S. Congress to fix "deficiencies that could hinder enforcement" of intellectual property laws.

The report was prepared by Victoria Espinel, the first Intellectual Property Enforcement Coordinator who received Senate confirmation in December 2009, and represents a broad tightening of many forms of intellectual property law including ones that deal with counterfeit pharmaceuticals and overseas royalties for copyright holders. (See CNET's report last month previewing today's white paper.)

Some of the highlights:

• The White House is concerned that "illegal streaming of content" may not be covered by criminal law, saying "questions have arisen about whether streaming constitutes the distribution of copyrighted works." To resolve that ambiguity, it wants a new law to "clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances."

• Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move "would assist U.S. law enforcement agencies to effectively investigate those offenses."

• Under the 1998 Digital Millennium Copyright Act, it's generally illegal to distribute hardware or software--such as the DVD-decoding software Handbrake available from a server in France--that can "circumvent" copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to "inform rightholders," "provide samples of such devices," and assist "them in bringing civil actions."

The term "fair use" does not appear anywhere in the report. But it does mention Web sites like The Pirate Bay, which is hosted in Sweden, when warning that "foreign-based and foreign-controlled Web sites and Web services raise particular concerns for U.S. enforcement efforts." (See previous coverage of a congressional hearing on overseas sites.)

The usual copyright hawks, including the U.S. Chamber of Commerce, applauded the paper, which grew out of a so-called joint strategic plan that Vice President Biden and Espinel announced in June 2010.

Rob Calia, a senior director at the Chamber's Global Intellectual Property Center, said we "strongly support the white paper's call for Congress to clarify that criminal copyright infringement through unauthorized streaming, is a felony. We know both the House and Senate are looking at this issue and encourage them to work closely with the administration and other stakeholders to combat this growing threat."

In October 2008, President Bush signed into law the so-called Pro IP ACT, which created Espinel's position and increased penalties for infringement, after expressing its opposition to an earlier version.

Unless legislative proposals--like one nearly a decade ago implanting strict copy controls in digital devices--go too far, digital copyright tends not to be a particularly partisan topic. The Digital Millennium Copyright Act, near-universally disliked by programmers and engineers for its anti-circumvention section, was approved unanimously in the U.S. Senate.

At the same time, Democratic politicians tend to be a bit more enthusiastic about the topic. Biden was a close Senate ally of copyright holders, and President Obama picked top copyright industry lawyers for Justice Department posts. Last year, Biden warned that "piracy is theft."

No less than 78 percent of political contributions from Hollywood went to Democrats in 2008, which is broadly consistent with the trend for the last two decades, according to OpenSecrets.org.