Administration Can't Let Go: Wants To Bring Back Felony Streaming Provisions Of SOPA

from the not-this-again dept

We’ve been working our way through a paper released last week by the Commerce Department, concerning copyright reform, and will have a much more detailed post about it soon (there’s a lot in there), but over at the Washington Post, they’re highlighting the silly recommendation to bring back the plan to make unauthorized streaming a felony. This was a part of SOPA and was widely discussed. It wasn’t technically in PIPA, but there was something of a “companion” bill from Senator Amy Klobuchar that effectively had the same thing. This got a fair amount of attention when Justin Bieber was asked about the law, and said that Klobuchar should be locked up.

It’s no surprise that this is coming back. It’s one of the points that’s been raised a few times since the death of SOPA. As we explained back during the original debate, there are different “rights” associated with copyright law, including distribution, reproduction, etc. For very good reasons, when the government put in sections on what could be considered criminal infringement, they left the “public performance” right off of the list of possible felonies. And that’s because it’s fairly absurd to consider a felonious public performance of a work. But, because of the rise of streaming sites, and the continued myopia of the entertainment industry, they’re afraid that sites that embed works from elsewhere might not be seen as technically violating the distribution or reproduction rights (for good reason), and thus they want to elevate public performance as a felony to try to let the feds go after such sites.

This is misguided on a variety of levels. First of all, it’s an attack on secondary liability. A site that is posting embeds of content hosted elsewhere shouldn’t be held criminally liable for that content — especially when that content may change over time and they have no direct control over it. If the original content is infringing, go after whoever uploaded/hosted the original content. Not the sites that merely have an embed. Furthermore, because the lines between reproducing, distributing and public performance can get blurry at times, it’s very likely that any increased criminality for public performance will be stretched and abused to cover things that people think should be perfectly legal. As Harvard law professor Jonathan Zittrain explained in detail last year, the streaming provisions could clearly apply to something as simple as posting videos of yourself performing a cover of a popular song you don’t have a license to.

Part of the issue is that current copyright law defines a public performance as follows (from 17 USC 101):

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.

Note just how broad that is. If you “transmit or otherwise communicate a performance or display of the work” for the purpose of having it performed or displayed at a place open to the public, you may be involved in a public performance. It’s not hard to see how that might be used to include people posting videos on YouTube.

And, really, this whole idea is misguided. It comes from the entertainment industry’s ridiculous belief that if they just keep playing Whac-a-mole with whomever they’ve decided is the “enemy” this week, it will eventually bring back old business models. Sites that embed streams from elsewhere aren’t the enemy. Trying their operators into felons is fraught with all sorts of dangerous unintended consequences. You’d think that, given what happened with SOPA that administration officials would shy away from pushing more such backwards-focused plans… but they just can’t resist.

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Comments on “Administration Can't Let Go: Wants To Bring Back Felony Streaming Provisions Of SOPA”

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Anonymous Coward says:

Hollywood studios are salivating with gleeful anticipation of the revenue streams that are going to become available when they can haul Average Joe into court for posting a YouTube video that has a radio playing the background. The songs on the radio needed to be “licensed” before posting that video, so now they can slam down a $150,000 penalty for illegal copyright streaming. Just think of the massive profits that this new trumped-up litigation will create for copyright holders!

obzelite (profile) says:

Re: Re:

pretty sure this is already the case, i’ve had a video marked as violation of copyright that i filmed at an air show, danger zone was being played over the sound system as a tomcat did a routine, the music was intermittent as the jet did low passes, and when you could hear it, it was background sound with lots of other noise as well.
i couldn’t be bother arguing and i just deleted the video.

xenomancer (profile) says:

Getting rid of "SOPA"

Someone just needs to at least introduce, if not pass, the Substantially Obscure Provisions Act. It could be as simple as defining the order of paring spots outside the capitol building (for America / terrorism / the children / national security / etc.). That way they have to say the whole damn name every time they feel like pulling some stupid idea from the PIPS’s evil cousin. Hopefully that will fill their heads with too many copies of the wrong message and ruin either the content of the new legislation (if they bother writing anything) or their chances of being re-elected (gotcha moments a plenty with such a loaded title).

I’m starting to think that the easiest way to get rid of these bad ideas is to consume as many cheap acronyms and phrases as possible with routine, simple legislation (they’ll love how grandiose it makes them sound) so that they are stuck admitting to a representation of the actual content in the title of proposed legislation.

Then again, the L.I.E.T.O.M.E.M.O.R.E. Act might be par for the course.

Transmitte (profile) says:

Setting it down and walking away from it...

There comes a point in time where you begin to alienate those you are looking to for support. Greed and the absolute need to govern every little thing is going to kill the business model they so fervently love(which is dying a slow agonizing death[for us]). I say let them strangle their own babies, at least it will teach them some sort of lesson.

Anonymous Coward says:

Re: Re:

I agree. With our failing economy, wars & leadership, it seems like our government has a few more important challenges to win before they waste their time on audio/video “piracy”. They could also stop their “war on drugs” and legalize/regulate/tax these substances which will never leave our society, but that would be in the best interest of the citizens who voted these fools into office & we are not on the top of their concern list.

Internet Zen Master (profile) says:


When is this Senator up for re-election again? Someone should forward this mind-blowingly stupid idea to the campaign manager of every single one of her opponents.

What better way to paint someone as incompetent and unworthy of their job than by portraying them as a person that supported SOPA and now wants to make showing a Youtube video in a public place a felony-level offense?

Anonymous Coward says:

Re: Re: So

However, Californians can oust one PIPA supporter in 2016 when Boxer comes up for election again.

That is about as unlikely as a dinosaur killing asteroid striking the Earth tomorrow. Sadly, I think the asteroid is more likely. It doesn’t seem to matter much what Boxer and Feinstein stand for…San Fransisco and Los Angeles will continue voting for them whether the rest of us don’t.

Anonymous Coward says:

our leading politicians are in office to do the best they can to support the Constitution and protect/encourage various things on behalf of the people. they do next to nothing as far as that is concerned! the shameful thing is, would similar envelopes from the public have the same effect as those do from the entertainment industries? if so, all those in Congress need to be kicked out and replaced! to try to bring back an update of this kind is ridiculous! it will do absolutely nothing for the people except make them criminals again over something that is second nature and give the industries another way of avoiding having to join the C21st! if there were as many Senators actually doing what they are supposed to as there are doing what certain industries etc pay them ‘out of hours’ to do, the advances in technology could have been huge! instead, thanks to a few extremely selfish but also powerful industries heads, here we are, stuck in the 90s’. i find it so ridiculous that so many of the advances made by man are done ‘illegally’, but are then adopted by ‘legal’ operatives at a later date. had the fear of embracing the future and of being stuck in the past, coupled with the fear of losing the control that some had become so used to having, been replaced by the desire of wanting to learn, to develop, to progress and expand horizons, i wonder where we would be now?

Anonymous Coward says:

I’ve stopped looking at the Federal government (whether legislative, judicial, or executive) as anything other than a puppet organization of various corporate interests. even decisions that benefit the public in general I see as only doing so because they work in the particular interests of whatever corporate they also benefit.

Anonymous Coward says:

There is a difference between the SOPA and Klobuchar versions of the felony streaming law. Klochar’s bill would not have covered those who merely VIWED content, because of the definition of what is a public performance in 17 USC 101. Watching a video at home would not have been covered by this, since you were not actually displaying the video in a public place by watching at home.

Tbe SOPA version would have been a lot different, as home viewing would have been covered.

Which version will be introduced in Congress? We will have to wait and see. But the Klobuchar version, although a terrible bill, would at least not criminalise those who view streaming content in the privacy of their own homes, and save the government from having to build thousands of new jails just to house those who merely view content.

ss (profile) says:

Re: Re:

Who gives a fuck? They both suck. I keep seeing reference to Klobuchar’s version like it means something. It doesn’t.

Streaming is not a crime.

If copyrights create felonies then copyright is wrong. There’s not even the tiniest fucking spec of the public in this ongoing argument. Copyrights, today, suck. Copyright maximalists are scourges on society, the public and progress. If that’s not fucking clear by now your heads are so far gone there really is no point.

Next thing you’ll tell me is that because I do business with someone then I forfeit confidentiality and privacy. Fuck. Unreal.

Anonymous Coward says:

Re: Re: Re:

Klobuchar’s version was not as draconian as the SOPA version. Under Klobuchar’s version, you would had to have actually realised some kind of financial gain for transmitting a stream. So most hobbyist streamers would be off the hook, since they don’t do it for money. You would have had to have actually made a profit of $2,500 within a 6-month period. SOPA had no such requirement.

That is why Klobuchar’s bill would have been the lesser of two evils. You would have had to have actually made money to have been committing a felony, so the hobbyist streamers, who made no money, would have been pretty much off the hook. About the only ones that would have been felons would have been sites that either charged a subscription fee, or made money from advertising.

And with the definition of “public performance” in 17 USC 101, that would not covered those who merely viewed the content, becuase it only covers displaying or performing in a public place, and someone’s private home would certainly not have been covered by that.

ss (profile) says:

Re: Re: You know, because priorities.....

Oh. But what about getting poor’d and six striked’d on the civil side? What about the constant and evolving things on the internets? Will I always have to click and browse my way through a fucking minefield because some folks can’t cope? We have cars now, they should get over it.

All because “wah – those are my arts!! It’s popular and they have an ad. wah.” and so try to make as many possible routes to any possible creativity as narrow and controlled as possible. Brilliant! How could that possibly fail? Crime.

Anonymous Coward says:

Joe Biden wants to give copyright trolls all the tools they need to troll harder.

If to “communicate” is to be criminal I can see a lot of people receiving mail from Team Prenda & Associates soon after the law goes into force.

Router multicasting would be illegal since transmission to the “public” which is not defined can be any group of people.

Illegal performances happen everywhere every single day in America, it will be a tsunami for all those street performers and other less known artists that have always depended on the inefficiencies of the system to make a living and know idiots in congress want to take it all away.

An efficient copyright system is asking people to accept that there is an efficient monopoly that is possible without a bad outcome.

It will never happen, it harms more than it do good and eventually it gets destroyed.

Anonymous Coward says:

Re: Re: Re:

Are you paid not to see or just looking for an honest answer?


In computer networking, multicast is the delivery of a message or information to a group of destination computers simultaneously in a single transmission from the source. Copies are automatically created in other network elements, such as routers, but only when the topology of the network requires it.

Wikipedia: Multicast

Some would call that aiding and abetting criminal copyright infringement others would just view it as a simple way at transmitting information to a number of devices at the same time.

The law above as written doesn’t make a distinction it is purposefully vague about the definitions to encompass as much as possible, that is why is poorly written it will make just about anything illegal, it would open the door for more abuse and it will happen, copyright trolls are probably stunt supporters of such bills.

Also WiFi is not multicasting, multicasting is the protocol used by routers wireless or otherwise.

Wikipedia: IP Multicast

It also could possibly be used to criminalize personal streaming to inside ones own home or used to in other areas to stop competitors or just plain censorship.

Would a doctor giving a lecture about some disease be a criminal for using material he collected elsewhere that is under copyright?

Would educators be able to show anything to students at all without being afraid of lawsuits?

I don’t think the people who create those laws care or bother in the least to even think about those issues, because if they did they would notice that copyrights are monopolies and those are powerful tools that used without clear restrictions become instruments of harm instead of good.

Bob Jacobson (profile) says:

Re: Spot On

Although the “entertainment” industry likes to round up popstars to make its case — that only through collecting absurd revenues can the arts flourish — in fact it’s quite the opposite.

Most artists are poor today because they cannot promote and distribute their work to potential buyers, cannot gain access to the means, without giving away most of their work’s value to the oligarchical media pirates.

It reminds me of cruising up the Rhine River, a castle around every turn, each built where some thug could string a chain across the river and thereby impede traffic until the ship captain paid a tribute. Like they say, behind every fortune is a criminal.

Anonymous Coward says:

Re: Re:

Not under this, or current law. This only has to do with those who send the streams, under what is defined as a “public performance” under 17 USC 101, at least Klobuchar’s bill would have limited it to that. SO those who VIEW streams would not have been covered under Klobuchar’s bill.

And if the coming bill is anything like Klobuchar’s bill, it will only apply to large-scale for-profit streamers, and not the hobbyist streamer who only does it for the love of the content.

Seth says:

The Bad Part

The thing I fear the most about the re-admission of this ticket is that not only will the ushers not see them in time, but once they’re in the movie theater, the audience will literally be shrouded in darkness, too dazzled by the “moving pictures” on the screen to care or look for the offender. If you didn’t pick up on it, this is a metaphor for what I fear will happen: the majority of the American public will be blissfully unaware of the changes around them, or ignorant of the changes made, and the consequences storming overhead.

Ashfall says:













Anonymous Coward says:

The sooner the music industry can kill off all unpaid advertisements the sooner we can forget what they offer. Were it not for the net, I would have no clue when someone mentions a song or movie what that might be.

I’ve been so revolted by the actions of the copyright cartels, I no longer buy music. Haven’t bought anything since sue’em all started. Nor am I planning to.

The end result has been a lost customer for my part. Someone who used to have no issue with plopping down $500 or better a year on music has been turned into a non-customer.

Yes, alienating your customers with actions they don’t like has repercussions. I will no longer be able to make a dent in their income as I provide no income any longer into their pockets. There are still others that are buying on the market who have yet to make known their displeasure.

When it reaches bankruptcy level events then I imagine we’ll see changes.

Bob Jacobson (profile) says:

Obama: Technologically Tone-Deaf

For all the praise that the Obamoids lavished on themselves on taking office, that they were such techno-mavens, that they’d open government, that they’d build a vibrant techno-democracy — the only things they’ve been able to accomplish is building a fundraising hotrod and permitting NSA paranoids to surveil our every online (and offline) activity.

Oh yes, and make Wall Street less regulated and wealthier, and the Police State including the Military more controlling of the rest of us.

Obama’s self-satisfied nincompoops haven’t advanced one iota any of the plans to enhance this nation’s technological foundations, create greater democracy, or even run government better and with more transparency. In fact, quite the opposite.

When the history of this Presidency is written, it will be one long litany of disappointments and betrayals, across the board but especially where change would have been easiest and most productive ounce for ounce, in a revived and freed up technology sector — and an enhanced democracy. Too bad for America.

Anonymous Coward says:

Re: Obama: Technologically Tone-Deaf

I’m not going to argue that Obama has been a complete failure, but don’t leave out his counterpart Republicans in your flailing. I was an Obama supporter and I completely agree that he hasn’t done a thing he promised in his campaigns. But, I haven’t seen the Republicans fighting any of these bills that impede on our privacy either. In fact, they seem to be the only thing both parties can agree on. We have a simple problem with our leadership, they are all sponsored by the same wealthy citizens/corporations in this country. If we want to see them give a s**t about the citizens, we need to institute public campaign funding and remove the corporations from the equation. Right now, it doesn’t matter who we vote into office, they will get their on the backs of corporate funding.

Aeschielle says:


No. No. No. Back to the corner with this shit. Back to the grave. C’mon, for the love of God, how many times do we have to murder this thing? Geez! This is freakin insane. I say we kill it with fire. And bash in the brains. Like in the Walking Dead, how the only way to not come back as a walker is to destroy the brain. Yeah. Like that.

PeoplePower says:

I think this has nothing to do with Copyright

this has little to do with copyright and more to do with Wiki-leaks and Snowden and private videos from protests and such and the like to be removed from the internet, the politicians are scared because the technology they use to spy on us is a double-edged sword we can now upload pictures of police brutality corruption and other such happenings freely and accessibly to the internet any where in the world, be it videos of war crimes committed from helicopters in Iraq or footage of police brutality during protests or questioning, audio uptakes from politicians, lets say that all of that now was illegal because someone could claim it was their copyright and you should go to prison for uploading it, how many people would be willing to put them self at risk then?

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