USG proposes 1) criminalize streaming 2) wiretaps on copyright infringers #usg #freeculture #copyright

As we have noted earlier, DHS/ICE recent takedowns of domains have been of dubious legality.  The Obama administration intends to clear that up in short order..

Declan McCullagh reports on the latest proposals from IP czar Victoria Espinel.

In a 20-page white paper (PDF), the Obama administration called on the U.S. Congress to fix “deficiencies that could hinder enforcement” of intellectual property laws.

Some of the highlights:

• The White House is concerned that “illegal streaming of content” may not be covered by criminal law, saying “questions have arisen about whether streaming constitutes the distribution of copyrighted works.” To resolve that ambiguity, it wants a new law to “clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”

• Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move “would assist U.S. law enforcement agencies to effectively investigate those offenses.”

• Under the 1998 Digital Millennium Copyright Act, it’s generally illegal to distribute hardware or software–such as the DVD-decoding software Handbrake available from a server in France–that can “circumvent” copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to “inform rightholders,” “provide samples of such devices,” and assist “them in bringing civil actions.”

The term “fair use” does not appear anywhere in the report. But it does mention Web sites like The Pirate Bay, which is hosted in Sweden, when warning that “foreign-based and foreign-controlled Web sites and Web services raise particular concerns for U.S. enforcement efforts.”

Supposedly the tricky legal point on streaming is whether it could be construed as “performance” – which, by definition, is protected under the first amendment, even if it is an infringing activity.