Protecting Our Artists and Entrepreneurs in an Innovation Economy

Editor’s Note: The following We the People petition response was posted on November 19 at White House – We the People.

As President Obama has made clear, "our single greatest asset is the innovation and the ingenuity and creativity of the American people." An open Internet is vital to creativity, free expression, and innovation. A key part of preserving these qualities is ensuring that we have the right legal tools to counter criminal conduct that harms our creators and users (and our country's economic health) in the face of continuous technological advances. It is essential that in doing so, we preserve the openness, privacy, security, and creativity of the Internet and its users.

For that reason, I'm pleased to discuss the Administration's position on criminal penalties for streaming of illegal, copyright-infringing content.

To be clear: We are not advocating for, and do not support, Congress enacting criminal sanctions against people who upload their own, non-commercial performances of other artists' works on Tumblr, against the content creators making your favorite mashup on YouTube, or against the users of these services -- like many of you who signed this petition -- who watch and listen to this digital content.

Rather, we think the law should deter the large-scale willful reproduction, distribution, and streaming of illegal, infringing content for profit. We think it is important to combat this type of activity because of the negative impact it has in diminishing the drive and economic incentive to produce the great movies, sporting events, and music that we love and that account for millions of American jobs and billions of dollars contributed to our economy annually.

With this goal in mind, and in recognition of the dramatic way in which the Internet and mobile technology has changed how we access content, we believe that federal criminal law should be modernized to include felony criminal penalties for those who engage in large-scale streaming of illegal, infringing content in the same way laws already on the books do for reproduction and distribution of infringing content. And, it's worth making clear that this proposed change doesn't require altering the existing rights and obligations of those who upload or view online content.

Legislative efforts to improve the copyright system, including those focused on streaming, will confront several key policy questions, a point the Department of Justice recently highlighted in testimony before Congress. In particular, as we look to modernize our laws to include felony criminal penalties for streaming, we should keep in mind that a felony is meant to reflect significant criminal activity. Therefore, in addition to establishing a felony streaming provision, Congress should consider the question of whether changes in the business model of streaming-based infringement also counsel corresponding changes in the way we set the harm thresholds -- e.g., the number of infringing acts or articles, their dollar value, and/or the statutory time period in which those acts must be committed -- required to establish a felony penalty for illegal streaming under the criminal copyright statute. The Administration is prepared to work with Congress on this important issue.

This is a rational, straightforward update to our criminal laws -- and it's necessary because online piracy hurts some of our nation's most creative artists and innovative entrepreneurs and companies, and if left unchecked, runs the risk of threatening the health of the economy and American jobs. Moreover, it reflects a commitment to ensuring that our laws work effectively in balancing the rights and responsibilities for all involved parties and for the American people. We must also make sure that our laws and policies safeguard free expression, respect for consumer privacy, and cybersecurity in the online environment.

While we strongly support this update to the law, we know that legislation and law enforcement, standing alone, are not enough to better the online environment. For instance, startups and content owners are also developing innovative new platforms and business models to market legitimate works online. Moreover, a range of voluntary, private sector-led initiatives are underway to develop and implement best practices to reduce intellectual property infringement that occurs online. They include leading Internet service providers, content producers and owners, payment processors, advertisers, and ad networks. This multifaceted approach is central to ensuring both the effective protection of intellectual property rights and the continued freedoms that make the Internet such a transformative and powerful medium.

Alex Niejelow is Chief of Staff to the U.S. Intellectual Property Enforcement Coordinator and Director for Cybersecurity Policy on the National Security Council.