The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“PROTECTING LAWFUL STREAMING ACT” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S7931-S7932 on Dec. 21, 2020.
The Department is one of the oldest in the US, focused primarily on law enforcement and the federal prison system. Downsizing the Federal Government, a project aimed at lowering taxes and boosting federal efficiency, detailed wasteful expenses such as $16 muffins at conferences and board meetings.
The publication is reproduced in full below:
PROTECTING LAWFUL STREAMING ACT
Mr. TILLIS. Mr. President, today I want to say a word about the need to revise title 18 so that criminal commercial enterprises that stream pirated content to users are subject to the same felony penalties as criminal commercial enterprises that distribute to users or reproduce pirated content. The provisions of the Protecting Lawful Streaming Act target clearly criminal conduct committed with criminal intent. Lawful internet and streaming services, licensees, other mainstream businesses, and users engaged in ordinary activities do not risk prosecution. Most importantly, businesses engaged in those activities are clearly excluded by the requirements that a defendant be engaged in conduct that is primarily designed, intentionally marketed, or has no commercially significant purpose or use other than for use in illegal streaming. Nor do those engaged in noncommercial activities risk prosecution under this statute. Noncommercial activities are explicitly excluded by the terms of section 2319C(a). It is intended that none of these activities shall be subject to any risk of criminal prosecution under this bill.
More generally, it is well established that criminal penalties are the exception rather than the rule in cases of copyright infringement. As the Department of Justice itself has noted, criminal sanctions are appropriate only with respect to certain types of infringement--
generally when infringer knows the infringement is wrong, and when the infringement is particularly serious or the type of case renders civil enforcement by copyright owners especially difficult. As such, criminal prosecution has been and is appropriately reserved for serious forms of large-scale, commercial infringement, not as a means of targeting ordinary business disputes between legitimate companies or those which are otherwise adequately addressed through civil litigation. The new section 2319C, in particular, requires willfulness, which means that the statute does not apply in the absence of an intentional violation of a known legal duty.
Consistent with this, a provider of broadband internet access service would not be subject to prosecution under this statute, for example, based merely on the attributes or features of its service, nor could prosecution be predicated on the misuse of its service by its customers or others in furtherance of an infringement scheme, where the service provider does not itself share the requisite criminal intent of the underlying substantive offense and act with specific intent to further it. In this regard, offering high-speed connections that allow its customers to access the internet, failing to block or disable access to particular online locations, or failing to take measures to restrict the use of or deny its customers access to such service would not be sufficient to demonstrate the requisite criminal intent under the bill. This conduct would also not otherwise meet the prerequisites under the aiding and abetting statute, regardless of whether the broadband internet access service provider might be civilly liable in such circumstances under the differing standards for contributory or vicarious liability.
A person who willfully and for purposes of commercial advantage or private financial gain offers or provides to the public a digital transmission service violates the statute under section 2319C(a)(3) when that person intentionally promotes or directs the promotion of its use in publicly performing works protected under title 17 without the authority of the copyright owner or the law. The language of section 2319C makes clear that it is the offering of an illicit digital transmission service, as defined by section 2319C(a)(1)-(3), that is an offense, not the marketing activities done by or at the direction of a person offering an illicit digital transmission service, as referred to in section 2319C(a)(3). Thus, an entity that provides only commercial online marketing services and does not itself also provide an illicit digital transmission service would not be subject to prosecution under section 2319C(a). Further, it is not the intent of this legislation to create potential aiding and abetting liability for mainstream third party ad networks or marketers. An online marketing services provider could be liable for aiding and abetting an unrelated entity providing unlawful streaming services only where the online marketing services provider shared the same requisite criminal intent of each element of the underlying substantive offense and acted with specific intent to further it. Thus, an online marketing services provider which places an advertisement for an entity that is violating section 2319C(a) would face aiding and abetting liability only if the online marketing services provider was itself associated with the criminal venture of the illicit digital transmission service to such an extent that it shares the criminal intent of the person offering the service and acted with the requisite specific intent to commit or facilitate the underlying offense.
Similarly, a service that streams content uploaded by users would not be subject to prosecution merely because some users might upload infringing content. The service would be subject to criminal liability only if it had the requisite criminal intent and acted with specific intent to further it.
The provisions of this statute also do not apply to any person acting in good faith and with an objectively reasonable basis in law to believe that their conduct is lawful. Thus, a bona fide commercial dispute over the scope or existence of a contract or license governing such conduct or a good-faith dispute regarding whether a particular activity is authorized by the Copyright Act would not provide a basis for prosecution. For example, neither a cloud-based DVR service nor an application provided by a multichannel video programming distributor, MVPD, to enable such MVPD's customers to access its video service utilizing a mobile device, which were the subject of prior civil copyright infringement challenges based on good faith disagreements regarding the scope of rights under the Copyright Act, would be actionable under this provision if the provider offering such services met this standard. By contrast, a party that merely asserts an applicable contract, an exception, or a belief that the person's conduct was lawful, in a case where the assertion is not made in good-
faith, is merely a pretense, or is otherwise not based on an objectively reasonable interpretation of the law, would not avoid prosecution on that basis.
The statute provides for an enhanced penalty in section 2319C(b)(2) for someone who knowingly commits an offense in connection with 1 or more works being prepared for commercial public performance. The
``should have known'' standard in section 2319C(b)(2) applies only after a finder of fact determines beyond a reasonable doubt that the person committed an offense under subsection (a). The ``should have known'' standard should not be conflated with the standards of willfulness, not primarily designed, no commercially significant purpose, and intentionality set forth in section 2319C(a), all of which define the underlying offense and are intended to protect lawful internet and streaming services, content licensees, and noncommercial users.
Finally, the statute in section 2319C(d)(3) defines a work being prepared for commercial public performance, based on the definition of
``work being prepared for commercial distribution'' in section 506(a)(3) of the Copyright Act, while updating that definition to account for the challenges of piracy in the modern streaming environment. Section 2319C reflects the fact that infringement threatens unique harm when it occurs prior to or in the earliest windows of commercial availability. The definition in 2319C(d)(3) recognizes that in the modem streaming environment, not all motion pictures are developed for theatrical distribution. The updated definition of a ``work being prepared for commercial public performance'' affords appropriately enhanced penalties for violations of the statute involving pre- and just-released film and television content, whether in a first theatrical window or immediately upon release to the public via a streaming or other platform. The legislation does not make corresponding changes to the definition of
``work made for commercial distribution'' in section 506(a)(3). Whether it is appropriate to harmonize the definitions is a question that is beyond the scope of this particular legislation, which does not otherwise make changes to title 17. Section 2319C(d)(1) defines
``motion picture'' as defined in the Copyright Act, which includes nontheatrical motion pictures, television shows, and broadcasts of live events.
____________________
