Senate Bill 978 Seeks to Make “Infringing” YouTube Videos a Felony, Silencing the Alternative Media

Posted on Jun 03, 2011 in Social Networking – Kevin Hayden

Source: Tech Dirt

Okay, this is just getting ridiculous. A few weeks back, we noted that Senators Amy Klobuchar, John Cornyn and Christopher Coons had proposed a new bill that was designed to make “streaming” infringing material a felony. At the time, the actual text of the bill wasn’t available, but we assumed, naturally, that it would just extend “public performance” rights to section 506a of the Copyright Act.

Supporters of this bill claim that all it’s really doing is harmonizing US copyright law’s civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing — but not performing. So, supporters claim, all this does is “harmonize” copyright law and bring the criminal side into line with the civil side by adding “performance rights” to the list of things.

If only it were that simple. But, of course, it’s not. First of all, despite claims to the contrary, there’s a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.

Furthermore, as we suspected, in the full text of the bill, “performance” is not clearly defined. This is the really troubling part. Everyone keeps insisting that this is targeted towards “streaming” websites, but is streaming a “performance”? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically and effectively the same thing). Without clear definitions, we run into problems pretty quickly.

And it gets worse. Because rather than just (pointlessly) adding “performance” to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances:

the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works

So yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link… you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don’t know it was infringing…? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.

Hayden’s Note:

What this author apparently can’t quite grasp is the far more “chilling” effect it will have on the overall, ever-increasing alternative media.  This bill, if passed, will surely end up in front of the Supreme Court facing a 1st Amendment challenge – speech and press.

By regulating a civil action as a criminal one, we have failed in yet another arena of being a society based upon the rule of law and expression.  Big surprise.

Update – Hayden’s Note II:

Let’s get into the ‘legalese’ aspect since several of my commenters believe that I am being an alarmist.  Here’s a scenario:

A. “Intentional infringement” – did the party intentionally use a copyrighted song on his or her podcast? Or was it by mere accident? Ignorance is not a legal defense, so this is somewhat easy to prove, especially in civil court where the burden of proof is much less.

Subsequent Provisions:

B. Would the copyright holder be able to profit $2,500 or more for a public performance of this piece? – Would the band U2 charge anything less than $30,000-$50,000 for a public performance of one of thier songs? Doubt it, but that’s debateble.  Most of their concert prices start above the $100,000 price tag and some having cost well over $1 million dollars, so I’m sure that Bono would charge – or stand to gain – more than a measly $2,500 per song.


B.1 Does the infringing party stand to gain more than $2,500 for displaying the performance? – On some popular websites, this could easily be proven when looking at website traffic and advertising profits for the blogger. Because of that one “performance” or videocast/podcast, he might have driven enough traffic to his or her site to gain $2,500 or more in profit through various means.  The amendment does not require both of these provisions to be satisfied; it’s one or the other.

C. Fair market value of a license must be in excess of $5,000 – This varies according to the copyright holder, but some works of music can easily fetch $50,000+ for the redistribution rights and public performance licenses, far above what the amendment requires.

Soo, if I make a videocast with a famous song as my intro, upload it to any number of streaming websites such as YouTube, and 10 or more people view it in a 180-day period, AND I do not hold any redistribution rights or licenses (such as radio stations have), then I could be found guilty under this amendment.


The fact that this has now gone from a civil offense – a non-criminal act that typically involves an administrative error or offense – to a criminal act is preposterous. It certainly does not need to be classified as a Federal Felony, punishable by up to 5 years hard time. Can you imagine sitting in a cramped cell with violent narco-traffickers and child rapists simply because you used an extremely popular song in a podcast?

What’s wrong with the current civil court procedure? The Powers That Be might very well have good intentions with this amendment, trying to attack those massive organizations that pirate movies and other protected works of art, but in the meantime, the act could literally destroy innocent lives and silence the alternative media.  More government is never a good thing.

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