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Introduced in May and sponsored by Senator Amy Klobuchar, bill S. 978 has been the talk of the tech blogs lately. The bill seeks to change the rules regarding criminal copyright enforcement, adjusting which types of infringement constitute a felony with significant jail time. Reactions to the bill have displayed a good deal of alarm. We’re here to sort fact from fiction as best as we can: no, you probably won’t go to jail for watching True Blood on a bootleg website. But yes, this bill does have some prickly bits, and there’s definitely stuff here that warrants some concern.
The case law involving copyright infringement has drawn a distinction (though shaky) between streaming content and downloading content on the internet. In a nutshell: making infringing content available for downloading = “distribution,” already eligible for felony sentencing. However, making infringing content available for streaming only = a “public performance.” The owner of a copyright has rights under civil law to prevent distribution or public performance of his/her work; however, “public performance” of a copyrighted work is not, under current law, a felony. (It's currently a misdemeanor, with a much lighter maximum sentence.)
Senator Klobuchar noticed that a lot of really troubling infringement was happening via online streaming, and so in order to fix the perceived gap in the law, her bill essentially seeks to add the words “or public performance” onto the list of ways you can be charged with a felony for criminal copyright infringement. While adding this new “public performance” language seems like this is an easy fix to the “streaming problem,” the bill actually makes the law a lot more confusing (and worrisome). Here’s how.
If passed, S.978 will make it punishable with a fine and/or up to 5 years in prison, to publicly perform, by electronic means, 1 or more works that infringe on copyright 10 times within a 180-day period, if the performances are considered sufficiently valuable (more on the issue of “value” in a bit). This rule has been interpreted in some pretty scary ways. Techdirt: “If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail.” (ellipsis in original). The law is not quite as clear as TechDirt would suggest, so let’s explore this a bit.
Who is the “public performer,” anyway? Is the “performer” the uploader (“streamer”) who shares the video publicly, or the viewer of the content (let’s call him/her the “stream-ee”) who plays it? Now, the law usually treats the uploader/streamer as the public performer, because the uploader purposefully allows his/her content to be seen by anyone on the internet. But can you see an interpretation of this law (that some have suggested) that would mean that the stream-ee, being the one who pressed play, is actually the performer? If it weren’t for the stream-ee choosing to stream the content, the performance couldn’t have happened. Does that make the stream-ee responsible? Did the stream-ee “aid and abet” the streamer? Not sure, and the bill certainly doesn’t explain. (The law is even less clear when it comes to linking or embedding content; that’s a blog post for another time, though.)
Along the same lines: assuming that the streamer is the public performer, and the video has more than 10 views (assume different viewers for each view to keep things simple), does each “view” of the copyrighted work constitute a separate performance? Or does the streamer who possesses the infringing video need to post it 10 separate times before the law kicks in? On one hand: once you hit 10 unique views, assorted members of the public have seen the performance at least 10 times, which means the performance actually occurred from start to finish at least 10 times. On the other hand: the uploader/streamer only made the content available for the public to view once – if you put on a juggling show in the middle of the street and 10 people saw it, that doesn’t mean that you did 10 shows.
Think this is getting confusing? Well, there’s more:
The issue of “value”
Once it’s determined that you’ve made a repeated public performance, and that you made money off of it, the question of how much your performance is valued becomes the next threshold issue. The court must measure “the total economic value of such public performances to the infringer or to the copyright owner” when determining criminal liability. If the economic value of the infringement exceeds $2,500, the infringer gets in trouble. For example: You may think you’d be OK if you only made $2,499 in ads for posting the music video for Billie Jean on YouTube. However, the late Michael Jackson would likely have been paid more than $2,500 if he hosted the video on YouTube – if so, you may still be in trouble.
Conversely, you could be held criminally liable if the total fair market value of the licenses you would have needed in order to legally perform the works would have exceeded $5,000. Here’s the good news: the word on the street is that a license to perform the song “Billie Jean” on YouTube (without the accompanying music video) costs about $2500 for a year, well shy of the requisite $5,000. Bad news: copyright licensing agreements are not usually available publicly. so without these rumors floating around, you won’t know if you’re over the limit until you’re already in court.
So when all is said and done... Am I going to get put in jail for singing karaoke on YouTube?
Some movements and commenters have expressed a fear that the bill’s loose and unclear wording would lead to a lot of reasonably harmless people getting pulled into court (or at least seriously threatened by copyright holders). Senator Klobuchar wants you to know that karaoke performances, home movies of family sing-alongs to “Happy Birthday,” and other small-time infringements are not the targets of this bill. Senator Klobuchar pointed out in a recent Senate Judiciary Hearing that that even with her proposed edits to 18 USCS § 2319, you wouldn’t be held criminally liable if your infringement was not for commercial advantage or financial gain. Senator Klobuchar insists that this safeguard will prevent the law from being too broad. Does that put my mind at ease? Well... not really. “Financial gain” is a very loosely defined term.
According to existing 17 USCS § 101, the phrase is defined as “includ[ing] receipt [defined as “signed notice”], or expectation of receipt, of anything of value, including the receipt of other copyrighted works.” Anything of value? So, if I understand this correctly, the safeguard means that if there’s proof you’ve made any money off your infringing video - even by having a single ad on your host site – you could trigger the condition. Even if all you’ve got is a PayPal tip jar to help raise money for your dog’s surgery, you could trigger. Even if you’re just posting your American Idol audition in the hopes of getting a recording contract, you could still trigger.
Realistically, I know the government is extremely unlikely to hunt users down for relatively petty infractions like the ones I just listed. Still, I’m not exactly comforted; while Senator Klobuchar says the commercial advantage/financial gain safeguard will keep the cases brought limited, I say that the wording of the safeguard makes it essentially useless. No one posts on YouTube without hoping to get something valuable, even if they are only looking for publicity. (Publicity is valuable!)
Considering all the legal oddities that would arise if “public performance” were added to the felony list, I think a harboring some skepticism towards S.978 is a good idea. I’m not opposed to the general idea of policing online streaming to prevent copyright violations. It’s just that if the purpose of the bill is to criminalize streaming, it should come out and say so. The bill is unworkably confusing because the underlying analogy connecting streaming and public performance is ultimately tenuous – “public performances” generally speaking, consist of a single occurrence in time, but a video on YouTube can potentially be streamed forever. Because of this fundamental dissonance, I think there will be a whole lot of uncertainty if this bill is passed into law.