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The majority of us will associate the Stop Online Piracy Act (SOPA) with the day when staple websites such as WikiPedia and Reddit went black. On January 18, 2012, a host of technology moguls staged a ‘blackout’ in protest to proposed legislation, suspending their online service for 24 hours, with Google ‘censoring’ its logo for users in the United States. SOPA contained a series of controversial provisions that increased US law enforcement capabilities to tackle online copyright infringement. Although proponents of the bill such as Senator Chris Dodd referred to the online protest as a ‘gimmick’ and a ‘PR stunt,’ the mass global attention and pressure on the government resulted in the bill being dropped. Apart from suggestions of the new mantra, ‘Don’t get SOPA’d’ resonating around Capitol Hill, the topic seemed to have largely been put to bed; however, a report issued in early July by the Department of Commerce’s Internet Policy Task Force resurfaced one of the most controversial clauses of the original bill – making streaming of copyrighted content a felony.

Currently, the illegal streaming of copyrighted content in the United States is punishable only as a misdemeanour and very rarely enforced; whereas the reproduction and distribution of copyrighted works can be treated as a felony. The report from the Internet Policy Task Force, entitled “Copyright Policy, Creativity, and Innovation in the Digital Economy” is now calling for illegal streaming to the public ‘to be punished as a felony in the same manner as other types of criminal infringement.’ Whilst this might not sound completely unreasonable, a five-year jail sentence for merely uploading a video to YouTube singing your favourite musician’s song could be a possibility if these proposals are put in place.

In Section 201 of the Stop Online Piracy Act entitled, “Streaming of Copyrighted Works in Violation of Criminal Law,” one of the means of criminal infringement would be the ‘reproduction or distribution… by the public performance by means of digital transmission… of 1 or more copyrighted works, when the total retail value… of the public performances, is more than $1,000.’ The crucial question here is whether uploading a video to YouTube would be viewed as a public performance, an answer to which Harvard Law Professor, Jonathan Zittrain, answered affirmatively in an article for ‘TechDirt.’ If, as Zittrain argues, an upload to YouTube does constitute a public performance, US citizens with a large number of subscribers could fall into this category, making them liable for prosecution. Yet the Department of Commerce’s report, so unequivocal in its support for the criminalization of illegal streaming, remains hazy on what the definition of a public or private performance is, admitting the issue is subject to ‘interpretative tensions.’ These issues of definition need to be clarified to prevent legal jurisdiction being applied simply at someone’s personal discretion (though one would hope such punitive measures would not be resorted to just for singing a pop star’s song).

It should be emphasized that copyright infringement, in particular illegal streaming, is an issue that needs to be dealt with. According to a detailed study by the American Assembly at Columbia University, 46% of U.S. adults have bought, copied or downloaded unauthorized data, including 70% of 18-29 year olds. Furthermore, the Internet Task Force highlighted that ‘copy-right intensive industries contributed 5.1 million jobs and grew by 46.3 percent between 1990 and 2011.’ As such an integral contributor to the economy, there is an imperative to nurture and incentivize creativity in the United States, whilst keeping up with the ever-changing nature of technology and new threats such as illegal streaming. Yet the balance needs to be kept between protecting economic interests on the one hand and civil liberties on the other. The broad and sweeping language of the proposed regulation has the potential to tip that delicate balance, undermining the Department of Commerce’s attempts to market copyright as an ‘engine of free expression.’

The report should be commended for its emphasis on a multi-faceted approach to the issue of copyright infringement. Aside from the criminalization of illegal streaming, private and educational initiatives are encouraging.  The most promising initiative is the development of legal alternatives to streaming, with a marked rise in legal usage in recent years. The American Assembly reported that out of 30% of Americans who copied or downloaded digital music files, 46% indicated they now do so less because of legal alternatives. The emergence of companies such as Netflix, which has more than 37 million members in 40 countries, and Spotify are providing easily accessible and cost-effective substitutes to illegal streaming. Whilst there is logic behind using criminalisation as a deterrent, more attention should be focused on developing legal programmes that offer valuable incentives to customers and protect creative industries.

The Department of Commerce’s proposal has already attracted significant attention from Internet users, with an online petition against the initiative already receiving 102,000 signatures. British readers may think that such legislation will only affect American users, but with a vast array of major servers based in the US, the bill will have not just national, but global repercussions.

The motives of these legislators are not misplaced or merely fueled by greed or money-grabbing – illegal streaming and copyrighted content are issues that need to be dealt with. The issue here is the mechanisms being used to tackle the problem. A more clearly defined, narrower policy with increased emphasis on legal alternatives will provide better solutions to ensure the Internet remains an innovative and creative marketplace.

BY: chloe Mamelok