Harvard Law Professor Explains Why Felony Streaming Provisions Do Put Justin Bieber At Risk Of Jail

from the not-so-simple... dept

There's been a bit of a back and forth over whether or not S.978 in the Senate and the felony streaming provisions of SOPA in the House would, in fact, put Justin Bieber at risk of jailtime for uploading videos of himself covering songs without permission of the copyright holder. There appeared to be enough that was vague in both laws that it could be interpreted that way, and that seems quite troubling for a variety of reasons. First, you don't want something that lots of people do every day to suddenly become a felony. Second, any law that is vague enough that such a result might happen is a law that should not be passed. The Bieber risks jail meme got plenty of attention. However, defenders of the law swear up and down that this is ridiculous and the law does not, in fact, put Bieber at risk. Many people (especially in our comments) rely on recent law school grad Terry Hart's analysis, in which he dismisses the arguments of those who think Bieber is at risk. Hart's analysis got picked up by other sources, including Billboard, and now supporters of the bill insist that there is no debate here. Bieber is not at risk.

I felt that Hart's analysis was lacking, especially when it came to the issue of embedding videos. Hart mainly focuses on whether or not an upload is a public performance -- since the crux of these bills is that they're making certain forms of public performances felonies. But there's more going on than just the upload. Either way, when Harvard law professor Jonathan Zittrain appeared last week on Colbert, arguing about SOPA, he used the Bieber example, claiming that Bieber faced three years in jail, rather than the five that most people had been mentioning. In my post, I pointed this out, along with my thought that perhaps Bieber had to embed the video to be liable for the performance. Zittrain emailed me to discuss, and after going through the details with him, it appears that I was mistaken, and Zittrain's analysis makes a lot of sense. Hart's analysis, on the other hand, seems to be missing lots of key points. With permission, I'm publishing sections of our email discussion.

First, on the question of whether or not it's three years or five years, Zittrain points out that if you follow carefully the details of the bill (which is tricky, because SOPA amends two existing acts, and you have to keep track of what's pointing at what, and what language changes), it's likely Bieber faces three years for his first video upload. The issue is that within Section 201 of SOPA, it would change Section 506 of copyright law in a few ways. But the one that matters, is 17 USC 506(a)(1)(b), not (a)(1)(a). In case you don't want to track it down, (b), as a part of explaining criminal copyright infringement, notes that the following qualifies:
by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000...
This is what Bieber would be accused of doing. Then, if you look at the corresponding statute (Title 18, section 2319), the part that says five years, 17 USC 506(a)(1)(a), rather than 17 USC 506(a)(1)(b). The section that covers (b) (which is 18 USC 2319(c)(1)) says "shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both." Three years it is!

Well... except that if you then read the next section, 18 USC 2319(c)(2), you realize that 3 years may only count for one video. A second video could net him 6 years:
shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a);
Oops. Even worse than five years.

But what about Hart's mantra that Bieber has nothing to fear because an upload is not a performance. That analysis appears to be quite lacking. Zittrain notes that Hart appears to be talking about something different (the upload), rather than the act of causing it to be performed:
No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 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.
So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.
Basically, by causing the infringing work to be performed, he could be very much liable under SOPA, contrary to Hart's analysis. As Zittrain noted later in our conversation, the real problem here is just how broadly this is drafted, because no matter what the true intentions may be, the fact that it very easily could be read this way is quite troubling. He notes that there is simply
no defense for broad drafting of a new felony in U.S. criminal law. When crafting a criminal statute with serious jail time at stake, it's incumbent on the legislators to properly narrow the scope of the law, rather than to write a really broad law and then count on prosecutorial discretion to ensure it isn't misapplied.
And that's really the key issue. The fact that you can construct a very credible argument that the law puts Bieber in jail... even if others can construct an argument that it doesn't is a huge problem in and of itself. Criminal law should not be open to such broad interpretations.

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  1. identicon
    Anonymous Coward, 10 Dec 2011 @ 8:38am

    Beyond backwards

    Defenders of these laws, including those in Congress who do so, seem to be suggesting that it's OK for them to be over-broad because they promise to only enforce them arbitrarily. How does that not just make them even worse?

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