Creativity and innovation are flourishing in the entertainment industries. But the growing threat of streaming piracy presents a major challenge to the continued vitality of legitimate online video services like Netflix, Disney+, Amazon Prime Video, Apple TV, and ESPN+. The problem is exacerbated by the lack of adequate enforcement remedies available to law enforcement, which – thanks to an artifact of copyright law – can only prosecute commercial streaming piracy as a misdemeanor. The time has come for Congress to close the “streaming loophole” by authorizing felony prosecutions for egregious violations of copyright law’s public performance (i.e., streaming) right. This paper will describe developments in the streaming marketplace for creative works and the piracy of these works, as well as the relevant legal provisions relating to criminal copyright infringement. Finally, the paper will recommend legislative change to close the streaming loophole and allay the concerns regarding such legislation.
Adam Mossoff, Randall Rader, and Zvi Rosen
Regulatory Transparency Project
July 20, 2020
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