STREAMING INFRINGEMENT
Traditionally, copyright infringement consisted of the unauthorised reproduction and distribution of tangible copies of a copyrighted work, such as through bootleg CDs, videotapes, or DVDs. With the Internet, copyright infringement proliferated through the downloading and swapping of digital files, mostly copied music and movies. Te expansion of the Internet, increase in available bandwidth, improvement of computer processing capacity, and ability to stream large- file content globally added a new dimension to copyright infringement. Innumerable websites offer music, movies, and television programmes to users for streaming consumption.
In this environment of streaming infringements, copyright owners face legal as well as practical hurdles to enforce their copyrights against infringers. To bring an infringement action against an infringer, the copyright owner must know who that infringer is or at least who would be able to identify the infringer (e.g. from the Internet service provider, or ISP, of the website used for the infringement). Unlike the user uploading or downloading files using traceable computers, the owners and operators of many of these websites are anonymous. Te websites offer no contact information or other indication of their owners. In addition, many are stored on offshore servers that make the tracing of data streams and communication to the ultimate owner or operator difficult, in particular if the servers are located in a low-enforcement area.
Moreover, the ability to use innocent computers through invasive technology in the distribution of illegal material further complicates the effective pursuit of infringers. Internet technology and specialised Internet service providers permit an owner or operator of a website to obscure its identity and location. For example, service providers such as Domains-by-Proxy permit users to register a domain name while shielding the identity of the registrant in the WHOIS domain name registration database. Under US law, the owner of an infringed copyright may obtain a subpoena against the ISP of an infringing website requiring the ISP to identify the operator of the website. However, this right is to no avail if the ISP is located outside the jurisdiction of a US court or the website is self-hosted by the infringer. Since websites dedicated to streaming infringing material are oſten hosted offshore under other countries’ domain name registries (e.g. ‘.to’ extensions), the information may be difficult to obtain. And even assuming that the copyright owner receives an injunction or judgment for damages against the infringer in a US court, the enforcement will be problematic if the infringer is located offshore and has no assets in the US.
An additional obstacle can arise under US copyright law, which requires the owner of a copyright in a US work (e.g. a work first published in the US or, if unpublished, authored by a US citizen or resident) to register the copyright before initiating an infringement suit based on that copyright. Tis creates problems for media that are intended to be available instantaneously to end users. For example, television stations with programming that is produced live or shortly before air-time, the prior registration requirement can pose an obstacle to an efficient protection of its copyrights against infringers that divert the station’s signals and stream the programming through an unauthorised website.
As a global problem, these types of streaming infringements require a global solution. International treaties, such as the Copyright Treaty of the World Intellectual Property Organization (WIPO), do not provide the procedural tools necessary to effectively combat cross-border streaming infringement. Until true global cooperation exists, national law has to step in to provide solutions. Te US government has started to take aggressive legislative and executive steps to address offshore streaming infringement. Using its powers to combat criminal copyright infringement, the Homeland Security Department’s Immigration and Customs Enforcement (ICE) agency began its ‘Operation In Our Sites’, an ongoing initiative against Internet counterfeiting and piracy. Te enforcement activities have engendered controversy in the Internet community but have resulted in numerous arrests and the seizure of more than 125 domain names of websites engaged in copyright infringement, the majority of which have been forfeited to the US government. Tese include websites directly offering infringing content as well as a website that linked to third parties’ unauthorised streams.
Additionally, in a white paper of March 2011, the Obama administration, emphasising the economic harm from online copyright infringement, highlighted the need for legislative changes to address online infringement. Subsequently, two bills to strengthen the law against streaming infringers were introduced in the US Senate. SB 978 would extend criminal copyright infringement, which currently expressly mentions only infringing reproduction and distribution, to infringement by public performance, thus clearly targeting streaming infringements. More significantly, the Preventing Real Online Treats to Economic Creativity and Teſt of Intellectual Property (PROTECT-IP) Act of 2011 would give additional remedies to both the US government and copyright owners.
World Intellectual Property Review November/December 2011 33
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