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.