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

by Luke Pelican on June 30, 2011 · 24 comments

in Features, Intellectual Property, Tech & Telecom

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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.

robert July 1, 2011 at 12:13 am

This new bill has many flaws to it. For example, i guess I can not use my cell phone in ” a place open to the public or in which it can be viewed by a “substantial number of persons”.

Thomas July 1, 2011 at 3:15 pm

I dont support this bill, its shiiiit, but what are you on about Robert? Why would you be running around in public trying to make a substantial number of people watch copyrighted material from your phone? Those are the actions of a crackhead my friend.

Tom July 1, 2011 at 4:02 pm

I agree with Robert, this bill has many, MANY flaws. I am sure I would not even be able to list all of them, but I will get to the core of the problem.

1. Not to bring youtube straight into this mix, but people have been posting game play, commentaries, and other sources of material just for the fun of it.

2. Some people do these sort of things /as a job/ if the government is trying “So hard” to give more and more people jobs, why propose a useless bill that is going to /take them away./ ?

3. If a bill of games being considered protected under the first amendment, whats not to say about the people who wish to post game play of it to showcase their skill set? I don’t see how some companies can support this when they are getting /free publicity/ about their game. (I Just don’t get people sometimes)

-That is just scratching the surface of the issues with this bill…and that is, me going by the last and smallest paragraph. I could go on and on about how many flaws that the whole “Linking and Prosecuting” issue has, but where would that really get me?

Anthony July 1, 2011 at 7:34 pm

Ok this bill won’t affect people who post videos for fun as for people who post them for a job (i.e Machinima) shouldn’t be affected as long as they do it legally. Believe it or not they do have to buy sharing rights if they plan to make money from their videos.

Will July 1, 2011 at 7:34 pm

Horrible bill by Amy Klobuchar, people are HUGE fans and many people stream the right way, giving credit. I DO NOT support this bill, bad move Miss Klobuchar… seriously do your research before proposing these bills.

Tom July 1, 2011 at 9:38 pm

This is stupid

Danners July 1, 2011 at 11:42 pm

yeah this is really stupid. first off, soo many people on youtube like to post or quote funny stuff on youtube from movies. so i’d say around 1000 videos a day would be breaking this law. the country would be bankrupt within months due to the fact that prisons have to pay for food, equipment, and other stuff to supply the prisoners. also if i may say it is also “infringing our rights” since it is ignoring freedom of choice, and press (technically posting stuff on youtube is considered press) i disagree with this law.

Noobalot July 1, 2011 at 11:55 pm

What’s Next..? Government Approved Video Games or Sites? More like, “I Want a Utopeia Country!”

I would want to Understand their Reasons BUT… Passing this Bill will Hurt many people who are Well known for Using Yoututbe the FACT that I made a YouTube Video with Captions from my Thoughts of a Game’s Cutscene.

Here’s a YouTube Video Explaining the Situation Here..
http://www.youtube.com/watch?v=hytigOSjJxc

Landon July 2, 2011 at 12:43 am

Am I believing my eyes? So people can get charged with prison for recording a Nintendo DS. Man these politics are even more stupid than I thought.

Chris July 2, 2011 at 1:52 am

What Robert is saying, he might have a song as his ringtone, so if that song plays, it would be a “public performance of copyrighted material”

Corey July 2, 2011 at 11:21 am

This is so stupid, and a complete waste.. They are saying “The Pirated DVD/CD” are the targets real targets.. But they are now expanding this stupid ass law to accompany music/movie streamers, and People who post game-play on the internet? Wow.. this just shows how dumb the Government is.. Congrats Numb-Nuts, you just took your first step to censoring the internet..

Batman July 2, 2011 at 12:19 pm

I just read that entire post, and nowhere in it did I see anything at all about gameplay videos… They specifically mentioned uploading complete movies, complete songs, and full episodes of tv shows…

Yogscast Fan July 2, 2011 at 1:29 pm

Nearly half of the Youtube community could either get arrested, or charged for this! They’re all innocent people! And plus, even though the Yogscast is British, it would be blocked from America! This law should not be passed!

M3ule July 2, 2011 at 2:24 pm

This is the stupidest thing I’ve ever heard. I know plenty of people who stream video games live, and I watch them. Same with Youtube, I watch games posted on there. America is losing its freedom slowly, this bill proves that.

Mark July 2, 2011 at 9:50 pm

What would happen to youtube itself would be a problem. There are quite a few channel partners on youtube who post gameplay videos of many games, all of which post more than 10 every half a year. (Most post 2-3 a week) Youtube pays them to post these videos so technically wouldn’t youtube be responsible for all the infringement along with the people who post the videos themselves.

Ric July 2, 2011 at 10:05 pm

So this thing is about uploading stuff to the internet?
So if you record a gameplay it’s ok as long as you don’t share it to peopel?

Jerry July 2, 2011 at 10:30 pm

if this law is passed, then half the world will suffer. an example is the youtube poopers, who make videos for fun, and are now being prejudicados.outro example is Machinima.all funny videos it will be deleted.

Will July 3, 2011 at 12:49 am

As big business has already threatened multi-million dollar lawsuits against family run restaurants and bars for playing music they legally purchased, don’t for a second be fooled by arguments about how this is only to target “bad people”. That idea of “commercial gain” is anything a $1200 per hour lawyer can dream up–the kind of lawyer you will never ever afford and will never ever defend you. Does you blog hosts ads that pay you for hits? Guess what–commercial gain! Do you take donations to pay for your server? If you’re not a registered charity, commercial gain! Who sponsored this bill and why? What lobbyists in Washington are paying hundreds of thousands of dollars or more to make sure this is rammed into law— when you determine who they are and how it benefits them, you will have your answers.

Damir July 3, 2011 at 9:28 am

I don’t want to support it because a lot of people stream videos every day like on the YouTube site. And a lot of innocent people would get disappointed because of this! I hope the bill will not get taken if it gets bad votes.

Liam July 5, 2011 at 2:31 am

If this does get passed i’m going to tinypic XP
And lets just agree we all agree with Robert like i’m going to get sent to jail just by letting my friends listen to my music with me or when i have parties and they’re all dancin to party rock anthem its not the feds are gonna come and arrest everyone
If anythin we should get Lulzsec or Anonymous to help us out

Brendon July 5, 2011 at 4:58 pm

God dammit, why did LulzSec have to leave? Bring back the LulzBoat, screw the government over more, they’ll deserve nothing less if this bill passes.

That Guy July 6, 2011 at 6:47 pm

I mite Move to a different country
Post videos on YouTube.co.uk

That Guy July 6, 2011 at 7:37 pm

This time they f**ked up big time

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