We've had a bunch of posts about the potential unintended consequences of the anti-streaming law S.978 from Senators Amy Klobuchar, John Cornyn and Christopher Coons, and how it could be used to put people in jail for up to five years for merely embedding
videos from YouTube, or for lipsynching
. Supporters of the bill keep trying to claim this isn't true, and point out (accurately) that this is not what the bill is targeted at. It's true that this is not the target of the bill, but could
it be used that way? Absolutely.
Supporters of the bill again point to the key provisions that would make the embedding of a video liable under the law, to claim that my statements are an exaggeration. Specifically, they highlight that a public performance (i.e., embedding of the video) is only a felony if "(1) it is willful (knowing and intentional) infringement (2) for commercial advantage or private financial gain (3) involving 10 or more performances within 180 days (4) that cause more than $2,500 in loss to the rights holder." As some supporters of the law state
, embedding YouTube videos does not meet that threshold.
That's incorrect. The public performance is clear. Embedding on a website qualifies as a public performance due to the ridiculously broad and vague description of what constitutes a public performance under the law. Now, on to the other points. We can now support many of them (the ones that supporters of the law claim are impossible to show) with the Justice Department's own words
, thanks to the recent filing against Rojadirecta's petition
to retrieve its domain.
First up... willful infringement
. The government opens by claiming that to establish "willfulness" you only need to show that the defendant "recklessly disregarded the possibility" that embedding the video might by infringing. Not only that, but it even suggests that all it needs to show is willfulness in the "intent to copy," rather than the intent to infringe.
Although the Second Circuit held in 1943 that willful intent in the criminal copyright context need only be shown as to the intent to copy the works, and not as to the intent to infringe the copyright... recent decisions in the Second Circuit in civil cases have made clear that "[t]he standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility."
Got that? The government believes that if you had willful intent just to copy the content -- as everyone does if you embed a video -- then willfulness can be established for criminal cases. If they bring in the standard for civil cases, then all they have to show is that you didn't pay attention to see if the video was covered by copyright law, and thus "recklessly disregarded the possibility." In other words, the government makes it clear that the bar here is low. Very, very low. Pretty much anyone who embeds a video has taken a proactive step. Willful? Check.
Next up is the big one. Personal or financial gain.
This is the one that supporters of the bill insist is why my points are not valid. But, again, let's see what the government itself has to say in the Rojadirecta filing, in proving financial gain. Here, the government makes it clear that even if you don't get direct financial gain from the video, if you put any ads around it, even the automated AdSense ads that earn nothing, they have enough to nab you for financial gain:
As an initial matter, Title 17, United States Code,
Section 506(a) "does not require that a defendant actually realize
a commercial advantage or private financial gain. It is only
necessary that the activity be for the purpose of financial gain or
benefit.".... Moreover, courts have held that "[f]inancial benefit
exists where the availability of infringing material 'acts as a "draw" for customers.'" ... It appears
that Puerto 80's revenue and profitability are directly dependent
upon increases in user base and enhanced Internet traffic to the
website. Thus, even if Puerto 80 does not directly profit by
receiving payment from the sites to which it links that stream the
content, in at least some sense, Puerto 80 apparently benefits
financially from making available copyright protected works on the
So there you have it, in the government's own words. If you have any ads on your website, they can claim that the embed "acts as a draw," and they've got enough to prove financial gain. It apparently doesn't matter if you earn pennies from it, or if the money that comes in doesn't even cover your basic costs:
the Government's investigation
has revealed that the CEO of Puerto 80, the owner of the
Rojadirecta Domain Names, has in fact received thousands of dollars
since at least October 2005 from Google AdSense, a free program
that allows website publishers to earn revenue by displaying
advertisements that are likely to be relevant and of interest to
users of those websites.
Okay, so let's start at October 2005, and the domain was seized on February 1, 2011. By my count, that's 73 months. Note, carefully, that they claim "thousands" of dollars earned from AdSense. Not even "tens of thousands" of dollars. At most
, then, they seem to be saying he earned $19,999 (though, I would imagine they'd round up in that case). But to give the government the benefit of the doubt here, let's take that number as the absolute maximum. That would mean, at a maximum
, Rojadirecta earned a whopping $273.96 per month. For a popular website. I can tell you from first hand experience (and Techdirt gets less traffic than Rojadirecta) that it costs a hell of a lot more than that in basic bandwidth costs to run a site that gets this kind of traffic.
To claim that this is "financial gain," is laughable. But, apparently it's good enough for the feds in this case. And the government's own filing clearly supports my claims -- which supporters of the bill claimed were laughable -- that the government can and will claim that any advertising, no matter how little, represents financial and personal gain. Financial gain? Check.
Okay. Involving 10 or more performances in 180 days
. While I'm sure some videos don't get that many, this is not a high threshold to reach -- especially if the feds themselves view the embeds a couple times. 10+ performances? Check.
Finally, that cause more than $2,500 in loss to the rights holder
, again this is incredibly easy to show. Given the industry's history of massively exaggerating
its "losses," combined with the feds seeming willingness to completely take the industry's word
on such losses, does anyone legitimately believe that the feds won't have an easy claim of $2,500 in "loss" to the rightsholder, should they wish to go after someone? $2,500 loss? Check.
So, there you have it. Using the Justice Department's own words, it's not difficult to see how S.978 can be abused to go after a very large number of people who embed a YouTube video that includes some infringing content (which can include an awful lot of videos).