Last month the U.S. Department of Commerce revived a concept most people thought was a ghost. In a report from the department’s Internet Policy Task Force, the agency returned to debate the notion of making the streaming of copyrighted works over the Internet a felony.

As it stands today, the streaming of copyrighted works is a civil, and not a criminal, violation. It could carry a misdemeanor charge of reproduction and distribution of copyrighted materials, but most litigation concerning the practice is settled monetarily. The Department of Commerce seeks to change this.

“Some would argue that copyright protection and the free flow of information are inextricably at odds — that copyright enforcement will diminish the innovative information-disseminating power of the Internet, or that policies promoting the free flow of information will lead to the downfall of copyright,” states the report, “Copyright Policy, Creativity, and Innovation in the Digital Economy.” “Such a pessimistic view is unwarranted. The ultimate goal is to find, as then-Secretary of Commerce Gary Locke explained, “the sweet spot on Internet policy — one that ensures the Internet remains an engine of creativity and innovation; and a place where we do a better job protecting against piracy of copyrighted works.”

The Commerce Department seeks to do this by applying the same penalties attached to illegally downloading an album or film to viewing streamed copyrighted content. This provision would effectively push streaming services, such as YouTube, out of business — as it can be argued that content creators assume the copyright on a piece of content the moment it is created and the distribution of even non-commercial content can incur a copyright violation.

In 2011, the website freebieber.org infamously argued this case by stating that under the proposed Stop Online Privacy Act’s section 201, which outlawed copyright material streaming, Justin Bieber himself, who rose to stardom based on his YouTube videos of himself singing copyrighted R&B songs, would go to jail for copyright violations: not only for the videos he made with copyrighted songs, but for watching the videos his fans made singing HIS songs.

Redefining Internet commerce

The Commerce Department’s proposal undercuts a major principle in the way the Internet works: it is a space where anyone is free to set camp and share ideas freely. Since the establishment of the World Wide Web in the 1990s, the notion of monetizing content on the Internet has always been an attractive goal, but impractical in implementation. Most Internet users shared the opinion that setting a price for content on the Internet is foreign to the concept of a free and open Internet.

However, as media companies attempt to find new sources of revenues, the proliferation of paywalls have expanded. Increasingly, more news companies have “premium content” only available to subscribers. Vertical distribution channels — such as Comcast and News Corp. — offer access to exclusive content for subscription or place it on a paysite, such as Hulu. In some instances content is produced explicitly for segregated viewing, such as Netflix-produced content.

The Commerce Department’s report suggests that the media conglomerates have not abandoned their hopes of an Internet that is licensed and controlled, similar to the way television is regulated today, and that the media industry still has allies in the Obama administration. This is troubling, as the Obama administration is actively seeking the reinstatement of “fast track” authority.

“Fast track”

“Fast track” is the ability given by Congress to the president to negotiate trade agreements without the consent of Congress. The negotiated agreement would be placed before Congress for a yes or no vote, without Congress having the ability to change or filibuster the agreement. “Fast track” was used for the United States-Israel Free Trade Area agreement, the United States-Canada Free Trade Agreement, the North American Free Trade Agreement and the Uruguay Round Agreements Act. While “Fast Track” was blocked by the Republicans during the Clinton administration, it was reinstated for George W. Bush in 2002.

Under Bush, the United States-Chile Free Trade Agreement, the United States-Singapore Free Trade Agreement, the United States-Australia Free Trade Agreement, the United States-Morocco Free Trade Agreement, the Dominican Republic-Central America-United States Free Trade Agreement, the United States-Bahrain Free Trade Agreement, the United States-Oman Free Trade Agreement, and the Peru Trade Promotion Agreement were all “fast tracked.” The provision sunsetted in 2007.

The Electronic Frontier Foundation argues that “fast track” excludes Congress from the trade agreement negotiation process at the expense of corporate interests. In regards to Congress’s access to the Trans Pacific Partnership agreement, Sen. Ron Wyden (D – Ore.) asked Ron Kirk, the U.S. Trade Representative at the time, to explain the transparency of the negotiation process. Kirk told the senator in committee:

“Well, Senator, I want to make it plain, that it’s not just industry, but it’s all of the members of our trade advisory commissions which are established by this Congress, and they’re cleared advisors, they have security clearance and they represent a broad range of interests from both industry and environmental groups, business groups…. Every member of Congress, any member of Congress, that wants to see the text of a trade agreement we’re negotiating has the ability to do so, as long as we’re doing so in a secure environment that’s private, so I would only offer that one clarification that any elected official in this body has the ability to see the same text as any of those cleared advisors.”

The fine reality is that special interest representatives have been given special access to the U.S. Trade Representative’s site, giving them full access to the document in real time. Congress members, on the other hand, must physically go to the USTR office and must review the trade agreement on a “read and retain” basis, meaning that the senators cannot transcribe or make notes of what they read and cannot bring in staff to review the agreement.

“As the Chairman of the Senate Finance Committee’s Subcommittee on International Trade, Customs, and Global Competitiveness, my office is responsible for conducting oversight over the USTR and trade negotiations,” Wyden said in 2012, in frustration about the White House’s exclusion of Congress from negotiations. “To do that, I asked that my staff obtain the proper security credentials to view the information that USTR keeps confidential and secret. This is material that fully describes what the USTR is seeking in the TPP talks on behalf of the American people and on behalf of Congress. More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.

“The majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations – like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America – are being consulted and made privy to details of the agreement.”

Protecting business at the expense of the consumer

In March 2013, Sens. Max Baucus (D – Mont.) and Orrin Hatch (R – Utah) wrote a letter to acting Trade Representative Demetrios Marantis, asking the Trans-Pacific Partnership Agreement included protection for intellectual property.

“We strongly support your commitment to ‘aggressively protect’ intellectual property through international trade negotiations,” the senators wrote. “As you stated at the Export-Import annual conference in 2010: ‘What’s more, we’re going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people …’ That’s why USTR is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections …”

In light of calls for copyright protections in TPP and in the upcoming Anti-Counterfeiting Trade Agreement, the free Internet may become a thing of the past. Ultimately, the question of the protection of digital rights may become academic, if those that can fight the corporate influence on the copyright debate are powerless to do so.

“How can this process possibly lead to digital policies that uphold the rights and interests of Internet users?” asked EFF. “It can’t. As long as the U.S. trade office treats corporate insiders as the only relevant voice in policymaking, as long as elected lawmakers are largely shut out, and as long as Internet users’ concerns are considered as an afterthought (if they are considered at all), this process is undemocratic and illegitimate.”