Do The Authors Of The Felony Streaming Bills Even Know What The Details Of Their Own Bills Mean?

from the doesn't-sound-like-it dept

After Justin Bieber himself pointed out how silly the various bills in both the Senate and the House (S.978 and SOPA, respectively) concerning making streaming a felony were, the office of the key sponsor behind S.978, Senator Amy Klobuchar's, insisted that Justin Bieber didn't understand the bill. We've been hearing the same thing from a few others, who insist that, at best, the streaming felony bill might make a service provider liable for felony charges, but would not impact an uploader such as Justin Bieber.

After looking over the details, I'm not convinced that's true -- and neither are the folks at Fight for the Future, and some of their legal experts. They've now put up a site called, highlighting the legal problems, and how it appears that Klobuchar and the supporters of SOPA don't even understand their own bills. Part of the claim is that it's only the service provider who would be responsible for the "performance," but that's not supported by the case law. Hell, it's not even supported by Klobuchar's own co-sponsor, Senator Chris Coons, who admitted that it wouldn't just criminalize service providers, but "individuals and sites providing the streamed content."

But the bigger issue highlighted by the site is that there is caselaw showing that "a transmission that ultimately results in a performance to the public is, itself, a public performance." That would suggest that merely uploading to a site that then allows a performance to the public could certainly be interpreted as a public performance. Furthermore, in the case of Bieber, the problem is not that he merely uploaded the videos. I agree that for people who merely upload videos of other people's work, this might not apply. But Bieber clearly was performing the works of others in his videos. The uploading isn't the issue. The performance in the video then combined with the public performance of the infringing video seems like it could easily fall under the law.

Yes, this is a question of interpretations of the law, and a large part of the problem is that the text as Klobuchar and (on the House side) Lamar Smith have put forward, doesn't carefully distinguish, meaning that no matter how many times they insist the law won't apply to people like Justin Bieber, we really won't know that for sure until the courts weigh in -- and the ambiguity, especially given the existing case law, means it's no sure thing. One hopes that the court would give weight to the statements of Klobuchar's staff, but there's no guarantee that they will. Besides, any law that is going to require hunting down the press quotes from staffers to prove that it doesn't mean what it seems to say on its face is, without a doubt, a bad and dangerous law.

So why is Klobuchar so focused on getting it passed?

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  1. identicon
    Anonymous Coward, 1 Nov 2011 @ 6:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends

    In Napster, the unauthorized distribution was technically performed by Napster servers. Yet the court nonetheless held that Napster's users, rather than Napster itself, were directly liable for civil infringement.

    The court was speaking to the direct acts of infringement committed by the users when they uploaded or downloaded content, and not of Napster's act of distributing that same content via the Napster servers. See 239 F.3d at 1014.

    This makes sense: if you use my car to murder somebody, I am not the principal, you are.

    This is circular. You haven't committed murder if your acts don't satisfy the legal elements of murder. Uploading a video doesn't satisfy the elements of a public performance.

    Relating all this back to Bieber, it was his deliberate action of uploading infringing videos to YouTube that directly caused the resulting public performances.

    That does not transform his upload into a public performance. There is no contemporaneous perception by users. Are you trying to make out a conspiracy charge here? Quite a stretch.

    That he used YouTube's servers is irrelevant in determining Bieber's liability, since he is clearly the principal.

    That is not correct. YouTube publicly performs the works. You could try to argue conspiracy or aiding and abetting copyright infringement, but it's not supported by any relevant case law.

    YouTube likely had no actual knowledge of Bieber's videos at the time they were uploaded, nor did YouTube have intent to infringe. Bieber, conversely, was presumably well aware that his videos depicted unauthorized recitations of copyrighted compositions, and he intended to perform them electronically in uploading the videos to YouTube.

    I admire the law school essay, but your answer tries far too hard to make a square peg fit into a round hole. Uploading a video to YouTube is not a public performance, because it does not result in a contemporaneous public performance. YouTube is the party publicly performing the work, regardless of whether they may be legally liable for doing so under the DMCA. Your secondary liability and principal/agent distinctions are misplaced in this context, removed from any relevant case law on point, and hardly a reason to claim that the misguided "freebieber" campaign's arguments are worth our attention or concern.

    I would recommend that you avoid the temptation to defend your positions at the cost of stretching legal arguments too far (as we must all do from time to time).

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