Tillis Release Details Of His Felony Streaming Bill; A Weird Gift To Hollywood At The Expense Of Taxpayers

from the and-why-through-omnibus dept

Earlier today, we wrote about reports detailing the latest attempt to push through a bill to make streaming copyright-covered works online a possible felony, this time being pushed by Senator Thom Tillis, who wanted to attach it to the federal spending omnibus bill. As we noted, Tillis was pushing back on some of the criticism, saying that the bill is very narrowly tailored and wouldn’t be used to criminalize random people. Of course, the response to that is twofold: (1) if this is the case, why haven’t you released the text and (2) why are you shoving it onto a must-pass funding bill without any of the normal debate and discussion?

This afternoon Tillis dealt with the first part of this by finally releasing the text of the bill. And he’s somewhat correct in noting that the bill is narrowly tailored. That doesn’t make it good or necessary. The key bit is this:

PROHIBITED ACT.?It shall be unlawful to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that

??(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;

??(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or

??(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.

So, the argument is that the “narrow” tailoring here is such that it only applies to websites, not users, if that site is “primarily” engaged in streaming unlicensed copyright-covered works, has no significant purpose other than that, and intentionally markets itself as such.

And, to Tillis’ credit, this is much more narrowly tailored than previous such bills. It still doesn’t explain why the text is only just being released now or (more importantly) why this has to be added to a must-pass Christmas Tree government funding bill.

To some extent, the thinking behind this bill is that it’s focused on a very specific set of circumstances. There have been websites out there that stream content they host, and those already faced felony charges for the hosting — but this seems to extend that to sites that stream the content that is hosted elsewhere. Of course, there is a much bigger question of why is this a criminal issue in the first place? It is yet another example of Hollywood trying to pass off what should be a civil issue, where the movie studios and record labels have every right and ability to sue these companies in court, and turn them into an issue that the US taxpayer now has to deal with? It’s basically a giant subsidy to Hollywood, taking a private dispute and putting it on the public dime.

As Public Knowledge says in its response to the bill’s release, “we do not see the need for further criminal penalties for copyright infringement.” Indeed.

The end result is that this bill is not as horrific as past felony streaming bills, and is, in fact, narrowly tailored. However, that does not change the fact that moving copyright issues away from civil disputes to be handled by copyright holders, to the federal government, is something that we should not support. Indeed, it should be seen as somewhat odd that a Trump-supporting Republican, who claims to be for keeping government out of business, is directly subsidizing Hollywood by having the federal government and US taxpayers take over their own civil legal dispute by turning them into criminal issues.

And, more importantly, none of this explains why the bill should be released at the last moment, and then dumped into the must-pass federal spending bill. It’s a bad idea. If Tillis really thinks this bill is good and necessary, he should have to defend it as such through the regular process bills go through.

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Comments on “Tillis Release Details Of His Felony Streaming Bill; A Weird Gift To Hollywood At The Expense Of Taxpayers”

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53 Comments
Anonymous Coward says:

Re: Stopgap funding [was ]

Some are saying it will be voted on tomorrow…

It probably won’t be — The omnibus spending bill probably won’t be voted on tomorrow.

Instead, yesterday the House passed a continuing resolution, H.R.8900, which would fund the government for one more week, while everyone negotiates on the omnibus spending bill.

The Senate was expected to take up the House’s continuing resolution today. But, for various reasons, they didn’t quite get around to it, or something sort of like that.

Anyhow, I expect the Senate to try again on the continuing resolution for stopgap funding tomorrow. That won’t be a vote on the omnibus spending bill.

Senate objections threaten to delay stopgap funding vote”, by David Lerman and Niels Lesniewski, Rollcall, Dec 10, 2020 (4:56pm no timezone)

 . . .

The latest stopgap, if signed into law, would extend current funding through Dec. 18.

That deadline would give Congress an extra week to negotiate and pass an omnibus spending package.

This comment has been flagged by the community. Click here to show it.

Ray Zaldese Points says:

I'm willing to stand the expense, as all honest people are.

The ridiculous F-35 program hit one TRILLION dollars, but you’re frugal on enforcing copyright, eh?

As I wrote yesterday, you oppose ANY enforcement of a personal right listed in body of Constitution. It’s just "a moral question" to you, and you’re for NOT hindering pirates at all, let alone rewarding creators.

This comment has been flagged by the community. Click here to show it.

Ray Zaldese Points says:

We'd at least get entertainment in return! (Okay, lousy ones...)

Let’s see your plan to, say, tax GOOGLE’S 30-40 percent profits.

And where do you stand on AOC’s TAX THE RICH plans, Maz? Have you bought one of her T-shirts, or isn’t it true that you wouldn’t be caught dead in one because you identify with and protect The Rich?

Jojo (profile) says:

How.... incredibly underwhelming

I guess that I’m all glad that this bill was largely anti-climatic, so anti-climatic that I retract my hot take. But that doesn’t mean that the proposal or Thom Tillis is out of my criticism. Tillis is still a copyright shill and what he has planned for the future is still not encouraging. As for the proposal, it’s not terrible, but not impressive either. It’s still a bad law, but not apocalyptically bad. Just pointlessly bad. We were all expecting SOPA-LITE, but instead we just got SOPA with ZERO calories.

I’m both cautiously relieved and outright furious for having a days-long anxiety attack over something largely inconsequential. But the question that still remains: “Y tho?”

Andrew Cook (profile) says:

Correction

So, the argument is that the "narrow" tailoring here is such that it only applies to websites, not users, if that site is "primarily" engaged in streaming unlicensed copyright-covered works, has no significant purpose other than that, **or** intentionally markets itself as such.

Though I’m pretty sure any legitimate illicit site will hit all three, it’s entirely possible that prosecutors will happily target innocent sites using only the middle prong.

Anonymous Coward says:

Financial gain

(a) DEFINITIONS.—In this section—
     (1) the terms … ‘financial gain’ … have the meanings given those terms in section 101 of title 17;

17 USC § 101Definitions

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

That foregoing non-intuitive, non-dictionary definition of “financial gain” was inserted into title 17 by Pub. L. 105-147, the No Electronic Theft (NET) Act, in 1997.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Narrow tailoring

[T]he argument is that the "narrow" tailoring here is such that it only applies to websites, not users

The bill contains no limitation just to websites. Instead, it explicity defines “digital transmission service” with reference to the existing 17 USC 101 definition of “digital transmission”.

The bill contains no exemption for users. Whoever users are, ”cause the bill doesn’t mention users. It defines who it applies to by specific conduct: anyone who “offers or provides…”.

Without stretching things too much, I can read this language to apply to BitTorrent. And, if I can read it that way, so can some assistant U.S. attorney.

Anonymous Coward says:

Re: Narrow tailoring

The “very bad” news: this law is so overwhelming if you put it in video form and put anything copyrighted and a lawyer willing to sue you can pretty much end up on the block.

The “maybe” good news: said overwhelmingness “as you said” pretty much promises this will end up in court some day raising concerns.

Anonymous Coward says:

Re: Re: Narrow tailoring

… if you put it in video form…

The bill is not limited to video.

The bill first explicitly uses, “works protected under title 17“. That, by itself, means every copyrighted work. To illustrate, 17 USC § 102(a) includes eight categories.

Five out of those eight categories are listed in 17 USC § 106(4). Another category out of that eight is listed in § 106(6).

The bill defines “publicly perform” in terms of the § 106 para (4) and (6) so-called performance rights. Both of those paragraphs refer to the 17 USC § 101 definition:

To perform or display a work “publicly” means…

That rather lengthy § 101 definition of “perform” “ publicly”, in turn, references the § 101 definition of “perform”:

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

One thing is sure, here, to render a work “by means of any device or process” is not used in the sense of “melt down”.

The bill is not limited to video.

MinchinWeb (profile) says:

Twitch?

It doesn’t seems like too much of a stretch to think that Twitch, without everything licensed (as they currently seem to be trying to fix), could find itself caught up in this bill.

That would be one hell of a horrible bargaining position if every time you (as Twitch or a competitor) approached a studio or a record label to license their IP your choices were to secure the license or go to jail…

Jeroen Hellingman (profile) says:

If this type of criminalizing actions which are more properly handled through civil courts is seen as a form of government subsidy, this will also be in violation of various trade agreements that forbid government subsidies, and thus open up the US to sanctions from other countries. I can imagine the French saying, hey the US entertainment industry is getting this subsidy, so we will impose another levy — not that they care about subsidies or are great with copyright themselves (they aren’t), but because it is yet another stick to hit the US with.

Anonymous Coward says:

THIS could be used to target twitch, since many streamers play games with music as part of the soundtrack,twitch has no deal with music labels .
very few streamers have formal permission to stream games with or without music .
if this gets through of course there will be more bill,s in future, worse than this probably to make it a felony to stream even one song or a short video unless you have permission from the ip holder.
These bills are been push for by legacy media corporations which make tv, and films and also the large music companys .
and of course they will not stop websites that are based outside america
from streaming illegal content.
bills like these chill free speech, and fair use.

Anonymous Coward says:

This could apply to many forums on reddit, that display images used in memes or other contexts, the point of a meme is to use an image as a joke or to make a point by combining images with text
How many of the images or gifs on short video clips are licensed from the creator , very few I.d say.
This law does not seem to allow for parody or fair use of images and short video clips
The riaa is targeting twitch for the use of music in the background
Maybe old media TV, film Companys will sue websites like reddit
for using images or video clips without permission

Anonymous Coward says:

"Must PASS BS"

It’s Scum politicians like this that push unrelated BIlls under the publics’ nose that pisses me off. Especially when it comes to copyright. They know the American public majority use their internet for streaming of pirated content, especially under COVID where you can’t view movies legally anyway, not to mention stores are getting rid of physical copy DVDs and CDs forcing more people to pirate what they can’t get.

A majority of Americans did not want SOPA or any other related copyright bills.

So the entertainment industry conspires more behind American’s back to work around them finding out and determine sneaking shit like this into "must-pass" bills is how to shove it down our throats.

Joe Biden was the most corrupt politician around conspiring with the entertainment industry in a similar way. It was a matter of time other corrupt politicians would pick up where he left off after successfuly getting essentially every entertainment industry to censor corruption stories about him while he sat in his basement, only to "WIN" an election he never campaigned.

My point is. The entertainment industry has for decades had their money stuffed in politicians’ pockets willing to bend over Americans. Now they are doing it more covertly without the public majority finding out to object and put a stop to it by showing it into this "must pass bill".

People need to fight back and pirate/stream everything. Stop peaying for cable, movies, music, and stream/rip/pirate it ALL. Call the politicians who did this and tell them FUUUUUK YOU!

Anonymous Coward says:

Services outside the United States with no servers in the USA are not subject to this law.

One very popular pirate streaming service has, for over 10 years now, been been operating from servers in Amsterdam.

As a Dutch-based service, they are not subject to this law.

While they are still subject to the EU copyright directive, they cannot be prosecuted in the United States as they are a Dutch-based company.

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