Free Justin Bieber: Do We Really Want Congress To Make Bieber A Felon?

from the say-no-to-s.978 dept

We’ve talked a few times about s.978, the bill from Senator Amy Klobuchar, that attempts to make streaming videos potential felonies. The bill is poorly drafted (at best). It basically just adds “public performance” as a possible felony under the law. That seems simple, but it’s way too broad, in an era when all sorts of things can be a public performance. Defenders of s.978 again insist that it’s not that bad because the law would only apply to willful “commercial” infringers — but as we’ve seen repeatedly, the feds seem to interpret that extremely broadly.

Thus, the bill could, in fact, be used against people streaming videos via YouTube for their own benefit. People like… Justin Bieber. In fact, a new advocacy group has kicked off a campaign against S.978 by asking people to help free Justin Bieber.

As they point out, Bieber became famous by posting videos of himself singing famous songs on YouTube as a kid.

As the campaign notes, this video was a big part of advancing Bieber’s massively successful music career — so you could easily make the case that it was clearly commercial infringement. It was “willful” and he clearly intended to infringe on the Chris Brown song. Clearly it was for “personal gain.” As the law notes, you don’t have to make money directly from the video for it to be criminal infringement. The law “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.” Check. It also has to involve 10 or more “performances” within 180 days. That video has over 35 million views. Check. And did it cause more than $2,500 in losses to the rights holder? Given how the RIAA defines losses, hell yes. Think of all that unlicensed use. If the label licensed the song for 35 million plays, I’m sure it would have cost a lot more than $2,500.

Game, set, match. Under Klobuchar’s streaming felony bill, Justin Bieber likely committed a felony.

Now, I realize that many people don’t much like Bieber or his music, but does he deserve to go to jail? Now, obviously, defenders of s.978 will claim that they don’t intend to go after the likes of Justin Bieber. But just the fact that they could suggests a massively problematic bill. And, realistically, the problem isn’t the Biebers of the world, but the next kids who upload a video of themselves lip synching to some song. This is a massively problematic bill, and hopefully you’ll check out the Free Bieber site to help let Congress know that this bill is bad news.

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Comments on “Free Justin Bieber: Do We Really Want Congress To Make Bieber A Felon?”

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84 Comments
Prophit (profile) says:

Re: Don't Tempt Me

Why are we even considering criminalizing a civil offense??? More and more civil offenses are being criminalized. No wonder we have the largest prison population in the entire friggen world… that includes all dictatorships, communist and socialist countries, and all fascist countries like Great Britain.

This is beyond rediculous. A civil court has more experience handling copyright violations than any criminal court. Get real, folks, we are becoming the joke of the century. The way this is going someone is going to mistake us for Palestine and our government for Israel. Oh, thats right, they already do.

Anonymous Coward says:

Can you say strawman? I knew you could!

The most important issue here is the rights to the song. You don’t think for a second that someone like Chris Brown isn’t happy to have his music in front of 35 million viewers?

Let’s go a little further – how many of those views came before the copyright holder knew about it? I am betting that the copyright holder was more than happy to let this one go.

Now further down the line, you would have to show intent – was the intent of the Beebs to advance his career, or was he just playing around? Trying to prove purpose would be difficult at best.

It’s a nice example of what anti-copyright people will do to protect the people who willfully violate copyright for profit, by trying to hide them behind a big name who would not likely have been considered to be breaking the law anyway.

Jay (profile) says:

Re: Re:

How about 50 Cent?

How about Jay-Z? How about Dolly Parton?

Having the government fight for established artists over up and coming artists is the problem.

Then let’s not forget this. Should Muddy Waters be protected from Led Zeppelin? The Rolling Stones from Led Zeppelin? Oh, but when the Rolling Stones sued Verve for doing exactly what they did, that’s somehow wrong. Then they sell the right to the song to Nike.

When the song was a folk song in the first place.

Chris Rhodes (profile) says:

Re: Re:

You don’t think for a second that someone like Chris Brown isn’t happy to have his music in front of 35 million viewers?

So you think that whether Bieber deserves 5 years in prison or not depends on a thumbs-up or thumbs-down vote from Chris Brown, and that such a system is okay because “Chris Brown probably wouldn’t do that”?

Yeah, that’s a good system to support.

Dark Helmet (profile) says:

Re: Re: Re:

“So you think that whether Bieber deserves 5 years in prison or not depends on a thumbs-up or thumbs-down vote from Chris Brown, and that such a system is okay because “Chris Brown probably wouldn’t do that”?”

Now introducing a new law entitled the Bitch Betta’ Act Right Act. Under this law, if a woman does something to upset you in some way, you can haul her out of your car and beat the snot out of her. Thing is, she has to have, like, done something TOTALLY bad and stuff. Yeah, TOTALLY bad. We put that langauge in there so the law won’t be abused.

Sure, the law could allow for interpretations under which a mild offense would result in the smackdown of a ridiculously hot young woman who happened to be in the car with a raging hardon of a douchebag, but Chris Brown wouldn’t do that….

Anonymous Coward says:

Re: Re:

The most important issue here is the rights to the song. You don’t think for a second that someone like Chris Brown isn’t happy to have his music in front of 35 million viewers?

Does that matter? This law is regards to criminal law, not civil law. If Justin didn’t have the rights every time it is streamed, it is a violation. Chris Brown’s wishes shouldn’t be an issue in pursuing criminals.

I am betting that the copyright holder was more than happy to let this one go.

As I said, this is criminal law. The federal prosecutor is the one who decides whether to stop prosecution, not Chris Brown.

Now further down the line, you would have to show intent – was the intent of the Beebs to advance his career, or was he just playing around?

Playing around when he first posted it? or playing around as he saw his career take off and continued to not take down the video? The violation is ongoing every time it is streamed without a license.

trying to hide them behind a big name who would not likely have been considered to be breaking the law anyway.

Other’s have been considered to be in the wrong for doing the similar things with other’s music (e.g. Prince). Is it not considered breaking the law because he’s a big name?

A non-mouse says:

Re: Re:

The most important issue here is the rights to the song. You don’t think for a second that someone like Chris Brown isn’t happy to have his music in front of 35 million viewers?

You might be right, Chris Brown might be happy to see his music in front 35 million viewers. As for his label? Not so much. They don’t see 35 million potential fans, they (incorrectly) see 35 million lost sales.

Let’s go a little further – how many of those views came before the copyright holder knew about it? I am betting that the copyright holder was more than happy to let this one go.

So if you “make it” before the copyright holder notices the infringement, they’ll let it slide. Otherwise, off to prison with ya. And that makes sense how?

Now further down the line, you would have to show intent – was the intent of the Beebs to advance his career, or was he just playing around? Trying to prove purpose would be difficult at best.

Now you’re just making stuff up. As has already been noted, they don’t need to show intent. Hell, they don’t even need to show profit for it to be considered commercial infringement!

It’s a nice example of what anti-copyright people will do to protect the people who willfully violate copyright for profit, by trying to hide them behind a big name who would not likely have been considered to be breaking the law anyway.

Your post is a nice example of what industry shills will do to prop up their failing businesses, by trying to push through horrible legislation so poorly written that it can be used to imprison normal, everyday people who would not likely have been considered to be breaking the law anyway.

Anonymous Coward says:

Re: Re: Re:

“They don’t see 35 million potential fans, they (incorrectly) see 35 million lost sales.”

[citation needed]

“So if you “make it” before the copyright holder notices the infringement, they’ll let it slide. Otherwise, off to prison with ya. And that makes sense how?”

The very basis on which companies like YouTube can run copyright material and get away with it… it’s called DMCA. Until the copyright holder notices, nothing has “happened”.

“Your post is a nice example of what industry shills will do to prop up their failing businesses,”

Too bad I am not an industry shill, just someone who can see the reasons why you have copyright, and why their needs to be laws to help enforce it in the internet age.

PaulT (profile) says:

Re: Re: Re: Re:

“[citation needed]”

Really? After reading here for this long, you really need a citation to show how the industry’s figures erroneously assume that every infringement is a lost sale? Try every single story that examines their figures and their methodologies.

“The very basis on which companies like YouTube can run copyright material and get away with it… it’s called DMCA. Until the copyright holder notices, nothing has “happened”.”

So, you’re saying that YouTube should pre-vet every video and remove every single possible copyright violation before it’s allowed to stream? Meaning that not only would they be indulging in an impossible task, but Beiber’s videos would never have been seen, never got him noticed and therefore lose all the money he’s made for his label thus far?

Thanks for such a sterling of the short-sightedness often criticised here. If you treat services like YouTube as criminals who are “getting away” with playing copyrighted material, then you also lose the huge benefits they offer the industry as well. You can’t have both.

“Too bad I am not an industry shill”

One day, you’ll stop acting like one. On that day, you will also stop being accused of being one.

Anonymous Coward says:

Re: Re: Re:2 Re:

“”Too bad I am not an industry shill”

One day, you’ll stop acting like one. On that day, you will also stop being accused of being one.”

… and when you stop acting like a pirate with a whole collection of pirated material on your computer, I can stop calling you a miserable freetard.

Come on Paul, grow up. I don’t work for “the industry”. Can you not accept that individuals might actually agree with them? Is it that hard to understand?

PaulT (profile) says:

Re: Re: Re:3 Re:

Ah maturity, thy name is not AC…

If you wanted to be honest, you would note 2 things:

1. I did not call you an industry shill. I merely commented that you act like one. I’m not accusing you of anything, merely noting how one-sided and defensive of the industry every comment you make tends to be.

2. Explain, apart from criticising the moronic policies of the entertainment industry (that actively block my legal purchases and make the resulting product less useful as well as eroding my rights), how do I act like the person you’re describing? Is it the way I support new business models and pay for them? Is it the way I dare to say when the industry’s doing something damaging to itself, whether it affects me directly or not?

Your problem seems to be that you section the world up into 2 halves – those who support everything the industry does without question and “pirates” – and then assume that everyone who doesn’t march in lock-step must be a pirate. One day, you may realise that there are many other types of people out there, and attacking everyone who dares criticise the industry gets you nowhere.

As I said, on that day, you might actually learn the real positions of the people you attack, and actually get somewhere, instead of spending your days attacking figments of your imagination as you do now.

Anonymous Coward says:

Re: Re: Re:

It can be one, the other, or both.

Really, the Beiber should have permission to use (license) for these videos. I have no doubt that he has that permission now, otherwise some wise ass from the legal department would have taken action.

In current youtube terms, if you got that many views on a video, they would be offering you an ad partnership and paying you for your content, which would tip things towards being commercial, and that would be simple.

In normal terms, the DMCA rules would be more than enough to get the video taken down, which would mean it would never get up to the level of a criminal action.

Criminal proceedings are not likely to ever be the first step here.

The eejit (profile) says:

Re: Re: Re: Re:

Then please, by all means, explain why the DMCA was even needed. I’m not actually trying to have a go. IT’s oh-so-typical of the major content brands to NOT ADAPT, and has been since long before even my father was born. First the phonograph, then the punchcard, then TV, then rahdio, then VHS, then CD, then MP3s, then DVD, now blu-Ray.

The pattern will continue, sadly, and the rest of the world suffers for the sake of a few dollars more.

Prophit (profile) says:

Re: We just want to piont this gun at you

Boy, you got that one right on…. Its just another patriot act for when they need it to arrest dissidents. I swear there are more Exec orders, laws, and Presidential signing statements that will imprison Americans, or assassinate them without a trial and now we want to imprison a kid for siging a song on the utube???? Give me a break.

Civil court would take care of this just fine by making him pay the author of the song what would be due to him if he had paid the license….. or the cost of the license, this is beyond ridiculous.

anonymous says:

everyone knows the danger here. Bieber wouldn’t even be threatened with being put in jail but the next up and coming artist, performing at home, may well be, simply because he posts on YouTube. everyone also knows the thing that would differentiate the jail time would be whether one of the big labels thought they could make a killing off of that new kid or not. if yes, there would be no cries of ‘infringement, lock him up’. if no, the poor bastard wouldn’t have a chance. he’d be banged up before his balls had time to drop!

Anonymous Coward says:

Re: Re:

“It defines illegal streaming as streaming ten or more times in a 180 day period. Furthermore, the value of the illegally streamed material would have to be greater than $2,500, or the licensing fees would have to be over $5,000.”
In other words, simply thinking about or quoting a song ten times could make you a political prisoner, and you know how much the industry loves to slap ridiculous price tags on thin air.

Anonymous Coward says:

Re: Re:

That depends on whose determining what is or isn’t a public performance. In my mind, and I’m not saying I believe this, but I’m looking at it from the “let’s screw them all” side of this, a video available on Youtube could be considered a “public performance” because it is viewable by anyone/everyone. Not just to the guy at home, but to the girl on the bus who is surrounded by strangers who may hear the vid or glance at it over her shoulder, etc.

Public performance has become a term that can be easily twisted to suit whatever meaning someone wants it to.

Marcus Carab (profile) says:

Re: Re:

Except that someone who uploads a video to YouTube isn’t engaged in a public performance.

Actually quite a few groups, including ASCAP and PRS, have indeed pushed to declare that a YouTube video is legally a public performance (just like they do with ringtones and Guitar Hero).

Moreover, the senators behind this very bill have explicitly stated that one of its purposes is to crack down on streaming videos. And the definition of a “performance” in the bill is extremely vague.

So in fact, despite the seemingly common-sense assumption that a YouTube video doesn’t count as a performance, that is exactly what this bill is targeting.

Casey (profile) says:

Re: Re: Re:2 Re:

YouTube is not on the hook either way. They are insulated from liability by the Digital Millennium Copyright Act, provided they comply with notice-and-takedown requirements.

What I’m saying here is that YouTube has licenses with Performance Rights Organizations, meaning that Bieber (or, more accurately, a future Bieber), would not be liable, as these uses are covered ;and subsidized by YouTube).

The other license for an underlying composition is a synchronization right, which requires a negotiation with a publisher. But the proposed legislation doesn’t touch that: it only applies to the public performance.

Anonymous Coward says:

Re: Re: Re:2 Re:

This law wouldn’t change one bit what is legal or illegal. Youtube is still liable for any infringement outside the scope of the DMCA safe harbor provisions. Uploaders are still liable for any reproduction or distribution of infringing material in the same way they would have been liable since online video was invented. S.978 doesn’t affect that one way or another — Free Bieber is either a campaign borne out of complete ignorance or FUD.

Anonymous Coward says:

Re: Re: Re:3 Re:

Wrong, the law writers are saying that it doesn’t affect YouTube uploads one way or another but that’s not the end all be all interpretation of the law. The only way to know for sure is to let it pass, let someone upload a video onto youtube, get arrested under the law, and have it go to court and eventually be ruled on by SCotUS. Then and only then would there be a definitive answer to the question ‘Does the law affect YouTube uploads one way or the other.’ At best all anyone can say is that it’s not supposed to do that and it’s not intended to do that which seems good enough for me, after all how often is a law ever interpreted to mean something different from what it was intended to do or what the framers of the law wanted it to do…

Anonymous Coward says:

Re: Re: Re:3 Re:

Then you don’t really need S.978 to clarify and make it criminal not civil what the laws mean by “(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” do we now?

Something is changing or those idiots wouldn’t be pushing for this ridiculous appendage.

Anonymous Coward says:

Re: Re: Re: Re:

Not what the law says.

To perform or display a work ?publicly? means ?

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Source: http://www.copyright.gov/title17/92chap1.html

ASTROBOI says:

A new Volstead act?

Thats what it sounds like. Want to know how far “public performance” can be stretched? They ruled that showing videos to prisoners on little tvs in their cells was a public performance and so the warden had to stop picking up a few movies at Blockbuster every week to play on the prison closed circuit. I forget what state this happened in, but it really happened! The Volstead Act promised to include reasonable exceptions that just about everybody wanted but instead it prohibited everything because the noisy WCTU members wanted it that way. And we know how well that worked out in the end.

Casey (profile) says:

Keep in mind...

One other thing to consider, regarding “Free Bieber”: it is my understanding that the PROs have agreements with YouTube, so if tomorrow’s Bieber — willfully or not — engaged in public performance, s/he would not be liable, as those uses are covered. Outside of YouTube, bets are off.

The synchronization rights are another story, but the proposed legislation only deals with public performance. Hopefully, Content ID and the ability to choose to monetize will make penalties irrelevant.

Anonymous Coward says:

Re: Citizenship

How not, ICE can make Spaniards liable, Swedish and British people criminals what makes you think they wouldn’t get Bieber if he ever stepped foot on American soil?

He could even be dragged of a plane that made a brief stop in American soil, the American government has a long history of jailing business people from other countries, like software producers, cassino owners and so forth.

misterdoug (profile) says:

Forget Justin Bieber

People seem to be overlooking the fact that the only qualification is the value of the copyrighted material. If you posted a funny photo on your website and it was reposted by thousands of other people, could I make them felons by offering you $2500 for the rights to it? I’m not even sure any money would have to change hands. We could just be in cahoots. Of course you could always state that the photo was in the public domain. Or not. That would put you in an interesting position, wouldn’t it?

Anonymous Coward says:

Singing a song

Singing someone else’s songs for no commercial gain whether streaming on you-tube or anywhere else purely for entertainments’ sake should not be a crime. WTF people? Surely there are bigger fish to fry out there. Like the assholes who want to annihilate all life in the free world, even our cats and dogs.

“{Good Golly, Miss Molly}”.. Oh.. I couldn’t say that? What? It infringes what? Who? “Bullshit”

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