[Congressional Record Volume 166, Number 218 (Monday, December 21, 2020)]
[Senate]
[Pages S7931-S7932]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    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

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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.

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