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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 Maplight.org 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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