[Congressional Record (Bound Edition), Volume 157 (2011), Part 7]
[Senate]
[Page 9597]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            FELONY STREAMING

  Mrs. FEINSTEIN. Mr. President, I rise to address S. 978, legislation 
passed by the Judiciary Committee last week that would increase the 
penalties for willful copyright infringement by ``streaming.'' I would 
like to explain why I voted ``pass'' on the bill at the Judiciary 
Committee markup, and to express what my concern is.
  First, I very much appreciate the intent behind this legislation, and 
commend Senators Klobuchar and Cornyn for bringing it forth. Online 
infringement of copyrights has had a very serious, detrimental, effect 
on the entertainment industry, which is based in large part in my State 
of California. Those who willfully infringe copyrights for the purpose 
of commercial advantage or private financial gain deserve to be 
punished like the thieves that they are.
  But in doing this, we must make sure that the punishment is 
proportionate to the crime. This bill simply copies the penalty 
structure from the current law that makes larger scale illegal 
downloading a felony. That law makes ``the reproduction or 
distribution, including by electronic means''--i.e. downloading--a 
felony punishable by up to 5 years imprisonment, if it involves: 10 or 
more copies; with a total retail value of more than $2,500; and within 
a 180-day period.
  This bill just replicates that penalty structure, with the additional 
element of an alternative ``fair market value'' threshold. It makes 
willful infringement through ``public performances by electronic 
means''--i.e. streaming--also a felony, subject to the same 5-year 
maximum sentence, if it involves: 10 or more public performances; 
within a 180-day period; with either a total retail or economic value 
of more than $2,500; or total fair market value of licenses of more 
than $5,000.
  As I stated at the beginning, I have no problem with increased 
punishment for large-scale infringers, whether they infringe through 
downloads or through streams. The problem, though, with this structure 
is that it treats streaming as being as serious as downloading. But a 
download, in my view, is obviously much more serious, because it makes 
a permanent copy of the song or movie or show, as opposed to the one-
time viewing or listening that streaming creates. This is very likely 
why downloading was made a felony to begin with, while streaming 
wasn't. Given that downloading is much more serious and damaging, to 
have a moral consistency with the downloading penalties, the streaming 
thresholds, at least in quantity, should be much higher.
  Therefore, I hope to work with the bill's sponsors before this 
legislation goes to the floor, to craft a more appropriate threshold, 
which reflects the differences between downloading and streaming. As 
the sponsors and the chairman of the Judiciary Committee, Senator 
Leahy, have stated, there are other outstanding issues that they are 
committed to addressing before this bill comes to the floor, and I hope 
this concern that I have can be resolved in the same way.

                          ____________________