Small Impact on Practice Predicted from White House IP Recommendations

Among the most widely publicized of the Obama administration's proposed legislative changes was the recommendation that Congress make copyright infringement via streaming media and other similar technology a felony offense under “appropriate circumstances.” Benjamin E. Leace, a shareholder at IP boutique Ratner Prestia in Valley Forge, PA, says it remains to be seen what “appropriate circumstances” would be if Congress were to enact the proposals into law. “You don't know if it applies to the [seven]-year-old who's downloading music,” he says. According to Espinel's report, there has been some question as to whether streaming media constitutes felony distribution of copyrighted works or merely performance of those works, which is not a felony offense. The administration is now asking Congress to put that debate to rest with a law stating the former.

But Kevon Glickman, a principal in Offit Kurman's Philadelphia office who focuses his practice on entertainment law, including intellectual property, wrote in an e-mail that if Congress were to heed the White House's recommendation regarding streaming, felony prosecutions would likely be reserved only for streaming operations “related to organized crime.” Otherwise, “things will continue as they are until commercial agreements are worked out,” he says, adding that many of the largest copyright infringers in the United States have legitimate functions that shield them from lawsuits and from being shut down. “America is very big into letting markets find their own way rather than through legislation and the hope is that commercial agreements will eventually conquer all.”