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Bill Moving Through Congress Would Make Streaming a Felony

June 15, 2011 - by Donny Shaw

With Congress gridlocked on everything the public actually cares about — e.g. the unemployment rate and the federal debt — they seem to have found at least one thing they can all agree on. Big media companies and the Obama Administration have been asking Congress to change the copyright laws so that people who stream copyrighted content on the internet, whether intentionally or not, can be put in jail or charged massive fines. The Republican-led House Judiciary Committee held a hearing on the idea on June 1st and the Democratic Senate Judiciary Committee is moving forward with a mark-up of legislation to do so tomorrow. Don’t you just love bipartisanship?

The bill in question is S.978, sponsored by Sen. Amy Klobuchar [D, MN], to “amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.” Specifically, it would raise illegal streaming from a misdemeanor to a felony by changing its legal status as a “public performance” to the same level as a “reproduction” or “distribution.” That would seem to mean that someone who unknowingly embeds a YouTube video on their site that contains material that is determined to be protected by a copyright could potentially face the same penalty as someone who runs a large-scale DVD bootlegging operation.

Here’s the meat of the bill defining criminal streaming:

(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and

(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;’

It’s hard for any online video not to have ten views within 180 days, and you can be sure that the big music and films companies would value their infringed work at more than $2,500 (they value a single mp3 at $22,500). Note that the person streaming does not have to actually make $2,500 of the work; a court would just have to decide that it represents that much in retail value to either party.

Why are both parties pursuing this right now when there are so many other issues facing U.S. citizens? I don’t know, but the money trail behind the bill provides some clues. Our data partners at have already verified 48 organizations that are actively supporting this bill, including some with the most powerful lobbying teams in Washington D.C., like the Motion Picture Association of America, the Recording Industry Association of America, the US Chamber of Commerce, and AT&T. Together, they have donated more than $2 million to Senate Majriuty Leader Harry Reid [D, NV] and more than $700,000 to Senate Judiciary Chairman Pat Leahy [D, VT]. The House has taken large amounts of money from these organizations as well, with Majority Leader Eric Cantor [R, VA-7] sixth on the list of top recipients, with $234,300, and Minority Leader Nancy Pelosi [D, CA-8] ninth, with $200,557.

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dcornwall 06/18/2011 8:52am

Another problem with this law is that the calculation of total economic value or lost sales is subjective. It’s not as simple as “X copies” from iTunes at $.99/song. We don’t know that everyone who listens to a copyrighted song on YouTube would buy it somewhere else. Additionally, some people who WOULDN’T have bought the song unheard buy a legal copy of the song after hearing an an infringing copy. There also appear to be some evidence that file sharing increases concert sales of shared musicians.

Then there’s the question of how to value items that infringe copyright but are not available for sale.

This sort of ambiguity is acceptable in a civil trial because only a defendant’s money is at stake. But by making this kind of infringement a jailable offense, you’re risking a person’s liberty on vague assessments. That doesn’t seem right. Especially when other remedies are in place.

dcornwall 06/18/2011 8:31am

Copyright owners do deserve protection and people shouldn’t be using the copyrighted materials of others to make a profit. I still think this is a bad law.

I’m wondering if you are aware there are already substantial civil penalties for copyright infringment up to $150,000 per count.

What this law does is to add jail time. Do you and your son think his friends should go to jail for five years and lose their right to vote forever just because they chose the wrong sound track for their YouTube video?

Under current law the record labels and movie studios have to go to court and prove infringment. They have demonstrated they are capable of using the civil courts to protect their rights.

The proposed law shifts the costs and burdens of detecting copyright infringment to the federal gov’t. Since copyright holders already have powerful remedies and the gov’t powerful debts, this doesn’t seem fair.

ScottCorner 06/16/2011 4:43pm

Article I, Section 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Doesn’t get much clearer than that. This is Congress actually doing something they should be doing.

Talked to my college-aged son and had him explain a few things to me and the bill makes sense.

The scenario: I regularly go to YouTube, not so much to watch the video of somebody’s family reunion, but to hear the song. I’m sure others do this as well rather going to iTunes and purchasing the song and the infinite right to listen to it. So if a video with a popular song gets 600,000 hits, that is over $600,000 in lost revenue; and that’s just on one video, b/c popular songs are used on multiple videos.

High school athletes put together “promotional” videos with background music in hope of earning financial remuneration (a scholarship) w/o compensating the artist.

Sounds like a good bill.

windvane 06/15/2011 8:48pm

While I guess most would agree (at least in principle) that it’s a bad thing to steal from those owning intellectual property, as with everything government the devil is in the details.

Specifically, how do you define streaming stuff well enough to protect what you should, while not worrying about anything else? Streaming content is all over the place, plus it is easy to bring down something without being aware up-front that it is protected by copyright, etc. I’d suggest it’s an unresolvable issue.

Of course, the Fed can always do what it always does… start a multi-thousand-person organization to watchdog and administer a “windmill” issue like this one.

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