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.

Filed Under: copyright, felony, public performance, sopa, streaming


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  1. identicon
    Anonymous Coward, 5 Aug 2013 @ 4:01pm

    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?

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