Earlier this month, the U.S. Senate Judiciary Committee unanimously approved S. 978, a bill that would expand the scope of felony criminal copyright infringement under federal law. While the legislation enjoys broad congressional support, a number of bloggers have slammed the bill on the grounds that it would allegedly impose criminal liability on lots of innocent U.S. Internet users. In this essay, I’ll answer a few "Frequently Asked Questions" about the legislation -- and explain why you should care. Here are some links to get you up to speed:
- Text of S. 978 as reported by the Senate Judiciary Committee on June 16
- TechDirt’s latest commentary on S. 978
- Electronic Frontier Foundation’s analysis of S. 978
- performing or displaying the protected material in a place open to the public or in which it can be viewed by a “substantial number of persons” (not a small family or friends setting); or
- to transmit or communicate to such a place by using “any device or process,” regardless of whether the people viewing the material are in different locations and viewing it at different times, or in the same location viewing it at the same time
Currently, if a criminal is selling pirated DVDs or CDs on a street corner, and they’re worth at least $2500, it is a felony. But if that same person is in their basement and felony streaming movies or books, whatever they could do, they could only be charged with a misdemeanor. This legislation fixes that loophole.
[The legislation] does not go after legitimate businesses or innocent people who post a video or post a blog. In other words, the bill is not intended nor does it allow law enforcement to prosecute people who may stream videos and other copyrighted works to their friends without intending to profit from the work of the copyright owner. It also does not allow prosecutors to go after individuals that innocently post links on their blogs to copyrighted protected works.Perhaps the most notable case involving a large-scale copyright infringer who only linked to infringing content is that of Brian McCarthy, who was charged with copyright infringement in March 2011. Allegedly, he operated a “linking site” on which he posted links to infringing content hosted on external websites. The criminal complaint (embedded here) alleges that he violated the copyright through “reproducing and distribution, including through electronic means. It is unclear if merely linking to content amounts to reproduction and distribution. In any event, Klobuchar’s bill purports to target individuals whose conduct resembled McCarthy’s alleged behavior. How could Congress amend the Copyright Act to target these bad actors without putting casual, noncommercial infringers at risk of prosecution? One way to focus on the most egregious infringers would be to heighten the thresholds for infringement set forth in 17 U.S.C. § 506. As written the threshold is set at ten or more performances within 180 days, with 1) a retail value of the performances, or total economic value to either the infringer or owner in excess of $2,500, or 2) the total “fair market value” of licenses for those performances exceeds $5,000. If the legislation is truly aimed at the bad actors streaming massive amounts of content, setting the threshold above ten performances would more narrowly target the bill’s scope. And as Robert Cringely suggests, a person could reach the monetary value threshold for either a film or a song without much effort. Moreover, Kiernan Maletsky observes, “the value of an online video is totally speculative at this point.” To the extent that Congress wishes to establish a new legal avenue for criminally prosecuting entities engaged in large-scale infringement in the form of linking or streaming, setting the bar much higher than it is currently would not likely impede that effort. On the plus side, raising the threshold would do a great deal to assuage popular fears that posting a few videos online might land one in federal prison. Would S. 978 endanger online intermediaries, such as YouTube, that stream and/or link to user-generated content without screening it in advance? It is unlikely that the legislation would affect intermediaries like YouTube and others, given that the prosecution must prove the specific intent to infringe; that could be very difficult to establish for those websites. However, others believe criminal liability for those sites remains a very real possibility, citing the vagueness of the legislation. Check out this piece by Mike Masnick for some consideration of this issue.