Paper: Introduction of the Protecting Lawful Streaming Act

Hello everyone

My paper topic is on the introduction of the Protecting Lawful Streaming Act in the US. I can’t really put in footnotes for my post on here, so I have included links to the bill and various articles at the bottom. Hope you find this somewhat interesting.

After the Protecting Lawful Streaming Act of 2020 (PLSA) came into force, “illicit digital transmission services” became a felony in the United States, punishable by up to 5 years (10 years for subsequent offences) imprisonment . It was introduced by Senator Thom Tillis on December 10, 2020 and inserted into the 5,593 page omnibus Consolidated Appropriations Act, 2021 (passed December 21, 2020), which was primarily the 2021 US federal fiscal spending bill that also included COVID-19 stimulus relief . Much can be said about a completely unrelated bill being added to an incredibly lengthy omnibus bill (the legislative text of which was only released on 2pm on the day it passed) that was essentially a “must sign” piece of legislation , but let us narrow our focus on the PLSA’s effects.

The PLSA makes it “unlawful to willfully, and for purpose of commercial advantage or private financial gain, offer or provide to the public [an illicit] digital transmission service” . A “digital transmission service” is defined as “a service that has the primary purpose of publicly performing works by digital transmission” . “Digital transmission” means “a transmission in whole or in part in a digital or other non-analog format” . Performing has a very broad definition and a “public performance” refers to either a performance “at a place open to the public…” or transmitting or communicating to the public . If following a similar meaning of the “public” as openly without concealment from Canadian Cable Television Association v. Canada (Copyright Board) , or going by the reality that the Internet is openly accessible (or if physical dimension required, using smartphones in public), almost all digital transmission qualifies. “Service” is not defined, though, which is the first concern. Are platforms (sites such as YouTube, Instagram, Twitch, etc.) service providers? Are users the service providers? Or both? Social media and streaming sites operate services for the primary purpose of allowing their users to publicly perform works by digital transmission.

First, from the Canadian perspective, the platform is generally exempted from public performance by telecommunication (SOCAN v CAIP ) and only users are usually caught. But this is due to statute, and only pertains to digital transmissions (public communication) generally. We must look to “illicit” digital transmission services to see the true scope in the US.

According to Thom Tillis, the PLSA is “narrowly targeted so that only criminal organizations are punished and that no individual streamer has to worry” . Public Knowledge, a tech advocacy group, stated that they “[did] not see the need for further criminal penalties for copyright infringement”, but agreed with Tillis’ statement on the PLSA’s narrow application . Ignoring the strangeness of approving of a law despite acknowledging it as unnecessary, let us finally analyze the scope of the new felony.

There are three categories of illicit digital transmission services:

1. services primarily designed or provided for the purpose of publicly performing copyrighted works without the authority of the law or copyright owner,
2. services with no commercially significant purpose or use other than publicly performing copyrighted works without the authority of the law or copyright owner, and
3. services intentionally marketed by or at the direction of the service provider to promote its use in publicly performing copyrighted works without the authority of the law or copyright owner

First, going back to the definition of “digital transmission services”, despite what PLSA proponents state, it is not clear from the wording that the services specifically exclude users. Therefore, we should consider these categories from the perspective of users and platforms. Each category has a caveat regarding authority of the law or the copyright owner. Almost no user of social media or streaming sites obtains consent from the copyright owner. Instead, they rely on the defence of fair use (fair dealing in Canada), which could still save users from these laws. As for platforms, “piracy” sites are clearly caught and have no defense, and other platforms may argue that they primarily offer their services for lawful use only.

For more context, there already exist similar criminal sanctions for illegally reproducing or distributing copyrighted material in the US . In the opinion of PLSA proponents, the new laws merely close a loophole, alleging no meaningful distinction between public performance and reproduction or redistribution . In Canada, that may be so as s. 42(2)(b) of the Copyright Act lists public performance for profit without consent as an offence, subject to up to 5 years imprisonment and/or a $1,000,000 fine under s. 42(2.1) (note: the laws and definitions are similar but not identical). From either legislative perspective, the PLSA does not seem to create new overreaching laws. Whether intellectual property violations should have criminal sanctions like other property violations (i.e. theft) or be considered contractual violations with only civil sanctions is another matter. For a final consideration, let us look at the practical consequences.

Other than the main target of “piracy sites”, others are also caught. DJs hosting virtual concerts are caught if they are missing a single license. Other platforms may be caught if most of the uploaded or streamed works allegedly infringe copyright. Most importantly, individual streamers and uploaders can be caught for playing music, reviewing or parodying anything containing copyright, performing plays, and etc. Fair use is a defence, and imprisonment may be rare, but even in seemingly clear-cut cases, one should exercise caution in hoping to avoid an overzealous prosecutor. Also, a successful defence will not save you from legal costs, which are unrecoverable, unlike in civil suits. There is cause for concern about the chilling effect in deterring lawful performance and encouraging abuse, and only time will tell if these laws support a proper balance between the public interest and creators.