Going to Jail for Linking? What Sen. Amy Klobuchar’s S. 978 Could Mean for You

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

If I embed on my website a YouTube video that turns out to be infringing and ten people watch it, in what circumstances could I be charged with a felony under S. 978?

Mike Masnick at TechDirt recently posed this question. To begin, federal law defines “public performance” in two ways:

  1. 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
  2. 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

Streaming appears to fall under the second prong, as a recent White House Intellectual Property White Paper argued. This also comports with a 2010 case from the Second Circuit, in which the court observed that “[a] stream… like a television or radio broadcast, is a performance because there is a playing of the song that is perceived simultaneously.”  Thus, each stream of a copyrighted video could well constitute a public performance for the purposes of 18 USC 2319(b). As Masnick points out, under S. 978, you may be open to criminal liability in such a situation.

However, that only answers part of the question.  Embedding a video is linking to content which is potentially hosted elsewhere, so the act of embedding would not likely be direct infringement through reproduction or distribution of that protected content, though this is far from certain.  If you post copyrighted works and host them yourself for streaming, you could be charged provided you meet the other statutory criteria.

Terry Hart of Copyhype has a more nuanced view, arguing that even if the law would technically make criminals out of individuals who post infringing videos online, the chances of prosecution would be slim, especially given the limited resources of federal prosecutors and other considerations. Hart further notes that the higher standard of proof in criminal cases compared to civil infringement cases will serve as a check on rampant prosecutions.  But this sounds an awful lot like, “just because they can doesn’t mean they will.” Hart’s arguments, therefore, are unlikely to alleviate the concerns raised by skeptics of S. 978.

What does case law tell us about what must prosecutors do to prove that I’m guilty of willful infringement?

For a prosecutor to show “willful” infringement, most courts have held that “the government must show the defendant specifically intended to violate copyright law.” (John Grimm, et al., Intellectual Property Crimes, 47 American Criminal Law Review 741, 770 (2010)). This requirement is in contrast to civil copyright lawsuits in which no such proof of “willful” infringement is necessary; only that infringement took place.

Additionally, 17 U.S.C. § 506(a)(2) states that, “evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.” In other words, merely posting an infringing video to YouTube can’t serve as the sole basis for proving you intended to violate copyright law.

How frequently is criminal copyright infringement prosecuted?

According to statistics cited by Terry Hart via the Administrative Office of the U.S. Courts, 234 federal prosecutions have been commenced for criminal copyright infringement between 2006 and 2010. 

What sort of activity is this bill aimed at deterring? Are there bad actors out there who engage in large-scale copyright infringement for commercial gain by willfully linking to and/or streaming copyrighted works without actually reproducing or distributing said works?

In Senator Amy Klobuchar’s own words:

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.