Expert Analysis: Bill S. 978

July 11, 2011 -

GamePolitics Contributing Editor and Maryland intellectual property attorney Daniel Rosenthal offers and in-depth analysis of Bill S. 978 (also known as the "anti-streaming bill") in this guest editorial.

S.978, the "anti-streaming bill" has been introduced in Congress, apparently in response to the White House's Intellectual Property Enforcement Legislation Recommendations white paper (PDF), which recommended to Congress that they should amend the Copyright Act to "clarify that [copyright] infringement by streaming . . . is a felony in appropriate circumstances." While that seems innocuous enough on its face, the bill presented by the bipartisan trio led by Sen. Klobuchar is deeply flawed for a number of reasons.

Let's start by addressing the number one issue I see with people misreading the bill. S.978 has two separate and distinct parts. Paragraph (a) addresses the penalties for criminal infringement; while Paragraph (b) addresses the infringing actions that lead to those penalties. In other words, although the provisions of (a) are listed first, they do not actually apply until an action covered under (b) takes place. So in your head, read (b) first, then go back to (a). Next, we need to look at what the bill actually does. Paragraph (b) makes 17 U.S.C. 506, the criminal provisions of the Copyright Act, also apply to streaming (written as "public performance").

First, when you look at the overall picture for content consumers, you're seeing a narrowing of our rights without any real payoff. At the same time this anti-streaming bill is coming out, we've also got ISP's engaging in a self-censorship policy with regard to allegations – not even proof -- of copyright infringement (the so-called "six strikes rule"). So we already have to be on our toes that our ISPs will throttle or cut our access without a fair means of recourse, or sufficient market alternatives. Now, on top of that, we have to worry about not just the content, but the method of socially sharing that content. Looking at the big picture, it's one hit after another -- ISP's fighting against net neutrality, ISPs being able to monitor and restrict your data consumption without a legal judgment, and now the anti-streaming bill giving the copyright industry an open door to come after innocent users of services like Justin.tv or Viddler with criminal charges. It's an erosion of our rights, and to what end? What are consumers getting out of this? Nothing -- consumers will see absolutely zero benefit from this whatsoever, and given the transnational nature of software piracy, it will have minimal effect in its supposed purpose.

Second, the bill is horridly vague. So far, the chief defense that I've seen of S.978 is that it only applies to "willful" infringement. Let me tell you -- that's not a difficult standard to achieve. Willfulness in a copyright infringement action is not that difficult to prove, and can be inferred from the circumstances in a case. This bill would have the effect of forcing consumers to prove that they were not acting willfully -- because any attorney worth their salt will be able to make a sufficient argument via circumstantial inference that the consumer's actions were willful by saying "Look, he/she intentionally typed in the URL and uploaded a video for broadcast. They didn't just trip and fall and faceroll the proper set of keyboard commands to share this video, there was intent to stream it to others." From there, it becomes YOUR duty to counter that argument; yet another burden on the consumer.

The other main defense that I've seen is that casual users will not be affected because the total economic value of the performances must be greater than $2500, or the fair market value of the licenses necessary must be greater than $5000. This too, falls flat as a defense. These minimums exist to provide for an increased penalty (minimum of three years) for those infringers acting for commercial gain. However, my reading of the law is that this does not replace the existing requirements for criminal infringement, but rather supplements them. So basically, even without meeting the dollar requirements under S.978, you could still be criminally prosecuted for streaming -- you'd just get three years instead of five. Yay (My interpretation, by the way, appears to be shared by other cyberlaw-oriented attorneys: "S. 978 Sending Illegal Streamers up the River").

Furthermore, the minimum dollar values in the criminal provisions are ridiculously easy to meet. For example, if even 100 people watch a stream of a game (not unreasonable even for an amateur these days), and the court determines that the fair market value of a license is $50 (again, not unreasonable, given that the supposedly infringing content is the game itself being rebroadcast in video form), the economic burden is more than met. Enjoy your felony conviction and 5+ years in prison. As well, the bill fails to define what standards will be used to determine the economic value of the performance, leaving it up to the attorneys to fight it out. While the copyright industry can afford to spend dozens of man-hours drafting complex arguments in favor of their position, most defendants cannot afford that luxury (even at my very reasonable rates!) and most criminal defense attorneys are not familiar with copyright law. So the very vagueness of the bill itself serves as a further deterrent against consumers.

The vagueness doesn't end there. What constitutes a "public performance" (per the bill) in the digital age? It is a term that dates back even before the Copyright Act of 1974, There have been reasonable arguments made that a monitor at a crowded LAN party could constitute a public performance. Many LAN cafes use streaming content in their games. But the law makes no exception for such a thing. What about spectator broadcasting of competitive gaming and e-sports? The law, as written, pushes the burden on the end-consumer of content to make legal assumptions as to the economic or market value of content they view before they actually view it. What about the "10 instances in a 180 day period" rule. Who is supposed to track that? The U.S. Government is not going to do it for you; the copyright holders who would be the plaintiffs are not neutral parties....every little bit of vagueness in this bill has the effect of emboldening and protecting the copyright industry and putting the end consumer at a disadvantage.

Finally, the bill has the added effect of harming smaller (particularly indie) developers. Regardless of whether the developer intends to sue over things like speed runs, "let's play" videos, and gameplay reviews, the mere fact that they could do so acts as a chilling effect on the video-producing community. So companies like TGN and Machinima will be facing possible criminal liability with every video they produce -- videos that directly assist the marketing teams of these smaller companies and help grow their player-base. You can bet on the copyright industry saying to them "I don't care if you think it is fair use; if you don't obtain a license from us, we're going to demand criminal prosecution against you with the increased penalties for commercial infringement. Pay up or enjoy your felony trial, sucka."

There is a lot to be concerned about with S.978. Unlike the recent Supreme Court case in Brown v. EMA, where there were clear signs on how the Court was likely to rule, the future of S.978 is much more uncertain. Despite a Congress that seems to be divided on partisan lines, the bill enjoyed bipartisan support going through the Senate Judiciary Committee (Sens. Klobuchar and Coons are Democrats, Sen. Cornyn is a Republican). And presumably the bill seeks to implement the White House's planned policies on IP enforcement, giving it some degree of administration support. Whether that is helpful or not with this Congress is a completely different question, but it certainly means that this is a bill to keep a very, very close eye on.

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Comments

Re: Expert Analysis: Bill S. 978

Hey Dan,

Thanks for translating this bill from legalize to English for us.  This is definitely scary stuff but I can't help shake the feeling that it is another cyber-crimes law being written by people that don't really know all that much about the Internet. 

Let's say it becomes law and US corporations go around suing everyone who posts material they deem illegal.  Can it even be enforced? What about all of the websites and users that exist outside of the United States.  In the short term, let's say it shuts down YouTube.  What happens when a European YouTube appears? If anything, it seems to me like this has more potential to just give other countries more influence over the Internet as America shoots itself in the foot and website operaters stop using US domains and servers.  

Re: Expert Analysis: Bill S. 978

So it literally is, "Shoot first, ask questions later".

The worst part about this bill is that it affects people who aren't even in the US, yet those of us outside the US don't actually get any say in this at all.

A large portion of websites that the average user visits today are hosted in the US. Sites like Google, YouTube, Justin.tv, Hotmail, Yahoo, Machinima, etc. This bill is not only effectively trying to use underhanded methods to destroy sites like YouTube and Machinima for the US, but also for every other person in the world who uses them.

I don't have to live in the US to be affected by this. Sure, I might not get as screwed over as an American will for streaming videos but it effectively stops anyone from watching videos because there'll be people not prepared to upload them in fear that they'll get arrested for something as trivial as a "Let's Play" video.

Not only this, but any website owners that don't live in the US but use US webhosts (like myself) will have to abide by US laws. What this theoretically means is that website owners who are hosting their site in US may not host content like video walkthroughs or reviews out of fear that the content they show in these guides may screw with this law, regardless of whether they live in the US or not.

This is going to affect a ton of websites. Many I'm sure a lot of us here use.

Re: Expert Analysis: Bill S. 978

More like "Just shoot, and screw the questions."

 

And destroying sites like Youtube and Hulu is probably the intended end result. The ISPs want people to stop using them, and the entertainment industry want to charge you fo everything you hear or see.

Re: Expert Analysis: Bill S. 978

"So it literally is, "Shoot first, ask questions later"."

Which is how groups like the RIAA and MPAA have been operating for years.

After all, being allowed to do that legally is far easier than actually having to, I dunno, PROVE anything.

Re: Expert Analysis: Bill S. 978

"Paragraph (b) addresses the infringing actions that lead to those penalties. In other words, although the provisions of (a) are listed first, they do not actually apply until an action covered under (b) takes place. So in your head, read (b) first, then go back to (a). Next, we need to look at what the bill actually does."

Woah, woah, woah.

Can you legally define a punishment BEFORE you legally know what can be considered illegal and THEREFORE punishable?  My understanding is that laws must be readable, understandable, without room for error, and all of that in the order they are written in.  If I have to read (b) before (a) to understand (a), then the law is improperly written and therefore unenforceable.

- Left4Dead

Why are zombies always eating brains? I want to see zombies that eat toes for a living. Undead-related pun intended.

- Left4Dead Why are zombies always eating brains? I want to see zombies that eat toes for a living. Undead-related pun intended.

Re: Expert Analysis: Bill S. 978

That's actually not really a thing. Because the illegal action is defined in Title 17, and the sentencing is defined in Title 18, it kind of has to be split.  Why they chose to do it in reverse order I have no idea, but it doesn't affect the validity at all.

It's not even that poorly written compared to say, OCILLA (the DMCA takedown provisions), which is written in an inverted format -- essentially saying "No liability for the service provider, unless: - but then the "meat and potatos" of the takedown process is in an exception to the general rule of no liability explaining how that immunity doesn't apply, except under a list of conditions (which go on to list the takedown provisions).

-- Dan Rosenthal

-- Dan Rosenthal

Re: Expert Analysis: Bill S. 978

In short, if you stream ANY content, photo, email, video, etc, and if ANYTHING in it is copyrighted, you could get arrested.

Example: you post a photo on Facebook, or a video on youtube, just from your own webcam. If there is ANYTHING of copyright material in it, like your t-shirt, or a poster in the background, if you mention copyrighted name, don't drop the soap. 

Re: Expert Analysis: Bill S. 978

Thsi is effectively going to kill off youtube, which is probably part of the point.

Re: Expert Analysis: Bill S. 978

Alright, I wasn't that concerned with this bill, now I am very, very, scared.

-Austin from Oregon

Feel free to check out my blog.

Re: Expert Analysis: Bill S. 978

Austin, I've mentioned this before to you, but in case you haven't seen it or have been shrugging it off, please contact your senator, Ron Wyden. He's stalled draconian IP bills in the past, including currently with the PROTECT IP Act, and if you and other people you know let him know about the problems with this one, he may act again.

Re: Expert Analysis: Bill S. 978


I've contacted him through the ECA, that's about it for now.

-Austin from Oregon

Feel free to check out my blog.

Re: Expert Analysis: Bill S. 978

Thanks, I did the same with my California senators (Boxer and Feinstein), so hopefully he'll take as much notice here as he did before.

 
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