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DOJ: Make Unauthorized Streaming a Felony

The Justice Department continues to press Congress to clarify that Internet streaming can be prosecuted as a felony and not just a misdemeanor.

Felony prosecution would mean larger penalties, and DOJ argues, better deterrence to online pirates.

In testimony before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, David Bitkower, acting deputy assistant attorney general in the criminal division at the U.S. Department of Justice, pointed out that bandwidth devoted to streaming unauthorized content had increased 470% between 2010 and 2012.

He said that would likely only continue to increase as streaming became the preferred method of distributing illegal online content.

The White House has been pushing Congress for years to make streaming a felony. Currently, it is treated as an illegal performance, which is a misdemeanor, rather than illegal reproduction and distribution, which is a felony.

Subcommittee Chairman Rep. Howard Coble (R-N.C.) asked whether he thought the lack of a a felony penalty for streaming deterred law enforcement from pursuing unauthorized streamers. Bitkower said yes, and pointed out that the trend was now away from downloading and toward streaming as the pirating technology of choice. He said that streaming clearly implicates the performance right, but that the misdemeanor penalties under that definition are not sufficient to discourage that rising tide of streaming piracy.

Coble asked witness Steven Tepp, an IP lawyer, specializing in legal analysis, counseling, and public policy, whether he thought the general public believed they were essentially entitled to online content.

Tepp said he thought that too many people did not give copyright the respect it deserves. coble said he agreed.

Other issues raised in the hearing included the Copyright Office's proposal of a small claims court for copyright infringement cases, which would give smaller companies and creators an easier and less expensive means to pursue legitimate claims against infringers, as distinguished from the "trolls" that can use threats of larger claims to extract settlements.

Attorney Nancy Wolff, who represents creators and small companies, advocated for that small claims approach, saying the system sometimes represented a discouragingly expensive sledgehammer when sometimes only a fly swatter was needed.