A bill to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Mr. President, I rise to address S. 978, legislation passed by the Judiciary Committee last week that would increase the penalties for willful copyright infringement by ``streaming.'' I would like to explain why I voted ``pass'' on the bill at the Judiciary Committee markup, and to express what my concern is.

First, I very much appreciate the intent behind this legislation, and commend Senators Klobuchar and Cornyn for bringing it forth. Online infringement of copyrights has had a very serious, detrimental, effect on the entertainment industry, which is based in large part in my State of California. Those who willfully infringe copyrights for the purpose of commercial advantage or private financial gain deserve to be punished like the thieves that they are.

But in doing this, we must make sure that the punishment is proportionate to the crime. This bill simply copies the penalty structure from the current law that makes larger scale illegal downloading a felony. That law makes ``the reproduction or distribution, including by electronic means''--i.e. downloading--a felony punishable by up to 5 years imprisonment, if it involves: 10 or more copies; with a total retail value of more than $2,500; and within a 180-day period.

This bill just replicates that penalty structure, with the additional element of an alternative ``fair market value'' threshold. It makes willful infringement through ``public performances by electronic means''--i.e. streaming--also a felony, subject to the same 5-year maximum sentence, if it involves: 10 or more public performances; within a 180-day period; with either a total retail or economic value of more than $2,500; or total fair market value of licenses of more than $5,000.

As I stated at the beginning, I have no problem with increased punishment for large-scale infringers, whether they infringe through downloads or through streams. The problem, though, with this structure is that it treats streaming as being as serious as downloading. But a download, in my view, is obviously much more serious, because it makes a permanent copy of the song or movie or show, as opposed to the one- time viewing or listening that streaming creates. This is very likely why downloading was made a felony to begin with, while streaming wasn't. Given that downloading is much more serious and damaging, to have a moral consistency with the downloading penalties, the streaming thresholds, at least in quantity, should be much higher.

Therefore, I hope to work with the bill's sponsors before this legislation goes to the floor, to craft a more appropriate threshold, which reflects the differences between downloading and streaming. As the sponsors and the chairman of the Judiciary Committee, Senator Leahy, have stated, there are other outstanding issues that they are committed to addressing before this bill comes to the floor, and I hope this concern that I have can be resolved in the same way.