People Realizing New Anti-Streaming Criminal Copyright Bill Could Mean Jail Time For Lip Synchers
from the unintended-consequences dept
We recently wrote about the horrible bill introduced by Senators Amy Klobuchar, John Cornyn and Christopher Coons to extend criminal copyright law to include "public performances" as being potentially criminal. As we explained at the time, current copyright law is split into civil and criminal parts, with most violations being civil in nature. But this new bill -- unfortunately recommended by White House Copyright Czar Victoria Espinel -- would extend the criminal provisions to include "public performances." Supporters claim that the lack of a "public performances" provision in criminal copyright law was a "loophole" or an oversight. But that's incorrect. There are good reasons why public performances aren't covered by criminal copyright law, in that it rarely makes sense to consider them criminal issues.Yet, because the entertainment industry is freaking out about sites that embed and stream infringing content, and want law enforcement to put people in jail over it, rather than filing civil lawsuits, this move was made to extend criminal copyright law. However, the idea and the suggestion were done with very little thought towards what this really means in an internet age, when almost everything you do online could be considered "a public performance." We already pointed to one possibility: that people embedding YouTube videos could face five years in jail. Now, others are pointing out that it could also put kids who lip sync to popular songs, and post the resulting videos on YouTube, in jail as well.
Now, of course, all of the supporters of this bill insist that's just crazy talk. After all, this bill is not intended for that purpose at all. It's solely intended to go after "criminals" who are doing these things for profit:
The new law will not target “individuals or families streaming movies at home,” said a statement from Klobuchar. She said the bill will instead target “criminals that are intentionally streaming thousands of dollars in stolen digital content and profiting from it.”That's nice to say, and I'm sure she means it. But this shows a massive misunderstanding of how the internet works. After all, plenty of people doing these kinds of videos may put some ads around them, and plenty of them get to be really, really big. And, as we've seen with ICE's domain seizures, they consider any use of advertising, even if it makes a pittance, to be "profiting from infringement." These days, everything has ads on it, and it's easy for anyone to sign up for a simple ad account and make a few bucks here and there for your activities online.
And that's the problem. While I'm sure no one supporting this bill thinks it'll be used in this manner, and I'm sure law enforcement has no interest or intention to go after lip-syncing teens, we've all seen how laws like this get stretched and used to bring people up on charges, when no other law applies. Remember the Lori Drew case? That involved the feds stretching a "computer hacking" law to claim she "hacked" MySpace by creating a fake account on the service, allowing them to charge her with a felony. Similarly, we've seen officials charge people with wiretapping for merely wearing a helmet cam while riding a motorcycle.
The point is that when law enforcement wants to charge someone with a felony where there's no obvious match, they'll often stretch laws like this to find something they can use. And this extension of criminal copyright law to include a "public performance" seems ripe for misuse. If Klobuchar and the others are serious about this, they should go back to the drawing board and rewrite the bill so it's not nearly so broad and won't open up so many potential unintended consequences.
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Filed Under: copyright, criminal law, lip synching, public performance, streaming, youtube
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I'm sure of the opposite. I'm sure she'll say anything to get the law passed.
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Exactly how many people need to be in jail in this country?
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More, more , more.
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Did you get permission for that public performance, citizen?
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You'd be lucky not to get a lethal injection!
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Is this kind of like the wolf telling the sheep to go ahead and graze with out any worries, because he isn't very hungry at the moment.
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Just put in the bill that a PERSON (individual or corporate) can be prosecuted under this bill unless it can be proven (by the prosecutor using actual evidence and facts) that the PERSON made 40,000 dollars a year or more in NET PROFIT from the traffic generated by said infringement.
Bottom line? If you post something on YouTube, you are not making any money from it. It isn't commercial. If you have a webpage and you host a link to some content, this isn't necessarily commercial. The fact that *some* money might be involved through ads on a minor amount of traffic, this doesn't make it commercial.
If you are going to define something to be a criminal act, it must be unambiguously criminal in nature. Defining a web page as actually making significant money on infringing content might make the bar, but just hosting links on a site with ads should not.
It doesn't bother me in the slightest that this bar would make it nearly impossible to prosecute anyone. The fact is that criminal acts require proof of actual harm or damage. And the fact is that in the U.S. you should be innocent until proven (with facts and evidence) guilty. You want a lower standard? Then it should be handled as a civil issue.
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Crazy Talk
This very *bill* is "crazy talk."
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Unintended Consequences
One thing your always complaining about is the lack of due process. BUT if something is criminal, there is REQUIRED due process, and there are 12 jurors that must agree that you committed a crime. I would think that making this criminal would actually backfire on the RIAA and MPAA big time because their letters are no longer a threat. Criminal trumps Civil until after the Criminal charges are done.
You are already witnessing the tides turning against the MPAA and RIAA with judges refusing to allow them to use the judicial systems. How exactly do you think that things are going to go when a Law Enforcement officer is handed a warrant for an infringement case vs a warrant for an assault case? Here's a hint, look at California's Marjuana legalities? Another hint look at Denver?
In both cases Feds say it's illegal, and the feds can prosecute at will any time they want. Now in Denver the case is the same except even the State says it's illegal, but the citizens in Denver told them to go to hell. Even the City Police tried rebelling against it until the citizens spoke out, and now even the city police leave it alone.
In both cases Federal Laws still say it's illegal, and no state can constitutionally state something illegal federally is legal locally, yet both seem to have no issues because those expected to enforce the Federal Laws still in most cases live locally and have to face their neighbors daily.
To me making infringement criminal in nature actually takes a lot of the teeth out of the MPAA's in this world. Hell if I got a letter threatening me with a lawsuit for something that is supposed to be criminal I would return it with a letter asking them to refer their case to the AG and see how far they get...
I would rather face 12 jurors of my peers for infringement than have my life savings consumed with no recourse in a civil case.
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Nothing in the bill changes the civil procedures that the **AA's can take.
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This law doesn't repeal the civil law and it's disingenuous to pretend that it does.
One thing your always complaining about is the lack of due process. BUT if something is criminal, there is REQUIRED due process, and there are 12 jurors that must agree that you committed a crime.
You mean like with the ICE domain seizures? Don't make me laugh at you.
Criminal trumps Civil until after the Criminal charges are done.
It only delays, it doesn't eliminate.
Hell if I got a letter threatening me with a lawsuit for something that is supposed to be criminal I would return it with a letter asking them to refer their case to the AG and see how far they get...
You'd be better advised to get a lawyer.
I would rather face 12 jurors of my peers for infringement than have my life savings consumed with no recourse in a civil case.
So you'd rather have your life savings consumed by both criminal and civil trials? Really? (And, by the way, both civil and criminal trials can be appealed. That is, if you have any money left for it. It's dishonest to pretend otherwise, but you're good at that.)
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> the MPAA and RIAA with judges refusing to allow them
> to use the judicial systems.
You should have added the word improperly.
They are allowed to use the judicial system, properly, just like anyone else.
They are not allowed to use the judicial system as part of an extortion shakedown business.
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Happy Birthday to You, Happy Birthday to You!
Doesn't sound too far-fetched huh? Oops, the song "Happy Birthday to You" is under copyright protection. Looks like Momma is heading to the Big House for a five-year stint. Don't worry, she'll be out just in time for junior's 10th!
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I did. You are wrong.
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I've noticed a pattern with you. You insist that we're wrong and don't know what we're talking about but never, ever, actually explain why. Telling.
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I know it may be a stretch for you to seriously entertain, but there are many comments made here by persons who actually are intimately familiar with the law, which comments are invariably shouted down with words like "shill", "maximalist", "biased", "money grugbbers", etc.
Fortunately, we appear to be in good company when we read many of the screeds here bemoaning courts such as the Supreme Court as simply not "getting it", or even more troublesome, "they have been bought off by corporate interests".
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In any other nation, this would be corruption.
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I know it may be a stretch for *you* to seriously entertain, but many of those comments are also made by persons intimately familiar with the law.
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Primarily because whenever I have taken the time to explain many of such issues in detail, even with citations, the retorts never change. They are essentially what is contained here.
On the rare cases when you have explained your position, the fact that some of us disagreed with your interpretation does not mean that we do not value the input.
I know it may be a stretch for you to seriously entertain, but there are many comments made here by persons who actually are intimately familiar with the law, which comments are invariably shouted down with words like "shill", "maximalist", "biased", "money grugbbers", etc.
It is true that some commenters will do that, but not all, and I think it's a cheap shot (and totally uncalled for) for you to paint everyone here with that same brush. I don't believe I have used most of the derogatory terms you mention.
I do admit to using "maximalist" but do not believe that's derogatory at all. It is a reasonable descriptor for folks who have a certain position. I don't know of anyone who uses it in a derogatory fashion.
I have also used biased, but again only where there is a reasonable basis for that.
The other words I don't think I've used except in extreme circumstances, and I certainly don't believe I've used them with you.
Fortunately, we appear to be in good company when we read many of the screeds here bemoaning courts such as the Supreme Court as simply not "getting it", or even more troublesome, "they have been bought off by corporate interests
Once again, I have never made the argument that the Supreme Court has been bought off by corporate interests. I have seen some fringe commenters here make that argument, but that is far from the mainstream, and it has hardly a position I believe as well.
So I'm confused. (1) You continually insist we're wrong, but refuse to back up your reasons. (2) When we ask you why, you falsely claim that we all attack you when you do. This is false.
So, again, I'm left to come to the only logical conclusion: you don't have the goods.
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One prominent response: Disgusting that someone would say such a thing as it shows they do not understand what underlies the First Amendment and are thusly anti-Free Speech.
An individual comments that Due Process has many facets, not all of which demand what is essentially a trial on the merits at the very outset of proceedings.
One prominent response: You are anti-liberty and it is shocking you think it is OK. How pathetic.
An idividual comments that secondary liability under copyright law has its roots embraced within longstanding common law, i.e., case law principles developed within our judicial system, recognized as such by Congress, and thusly not specifically incorporated into statutory law.
One prominent response: If secondary liability was meant to be a legal option, Congress would have certainly included it in the statutory language. The fact it is not there means that the courts are just plain wrong.
Etc., etc., etc.
Note that each of the few examples above are not directed to policy arguments, but only to the interpretation of federal statutory and common law, something which many within the legal profession have devoted their careers to understanding. These professionals may hold personal views about what the law should be, but it is not their role in courts of law to argue policy. That is something done within the halls of Congress, the arm of our national government tasked with the constitutional responsibility to make such policy choices.
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One prominent response: Disgusting that someone would say such a thing as it shows they do not understand what underlies the First Amendment and are thusly anti-Free Speech.
An individual comments that Due Process has many facets, not all of which demand what is essentially a trial on the merits at the very outset of proceedings.
One prominent response: You are anti-liberty and it is shocking you think it is OK. How pathetic.
An idividual comments that secondary liability under copyright law has its roots embraced within longstanding common law, i.e., case law principles developed within our judicial system, recognized as such by Congress, and thusly not specifically incorporated into statutory law.
One prominent response: If secondary liability was meant to be a legal option, Congress would have certainly included it in the statutory language. The fact it is not there means that the courts are just plain wrong.
Etc., etc., etc.
Oh look, someone still hasn't backed up their point.
Instead, you paraphrase (and don't link! very telling!) a bunch of people who may have complained about you in the past.
Look, this is an internet forum, and all sorts of people speak up. Some are more relevant than others, and sometimes they're nutty. Welcome to the internet.
Basically, you seem to be saying that you can't back up your point here because in the past you tried to, and someone challenged you on your claims.
That makes no sense. Grow up and POST SOMETHING that actually backs up your point, or admit that you can't.
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I mean, you're sitting here moving the goal posts, yet again, to try to say that Techdirt's site is held responsible for other's opinions.
Damn man, anyone can sit here and have a different view than yours. Using a sweeping brush to generalize all of the comments into one section doesn't help your case.
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The definition of terrorist needs to be expanded.
The bad guys used to be hippies. Then pirates. Now terrorists.
If someone is terrified that their business model is obsolete and they can't gouge artists and consumers anymore, then terrorists must be to blame.
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Neither is true. I have read it, and I am not trying to distort it. I specifically noted that the bill clearly isn't intended for this, but it absolutely *can* be used that way. That's the problem.
At least read the bill. You didn't even bother quoting the sections that you used to sound the alarm nor mention the provisions designed to assure that what you say will happen, will not
I did read the bill and pretty sure I linked to it in my previous post on it. The key part is that it adds public performance to the list of things that can be considered criminal infringement. This certainly *appears* to be a minor change. My concern -- as expressed in these posts -- is the actual impact.
I love how the supporters of this bill pretend that since it's such a "minor" change that it can't possibly have these sorts of unintended consequences.
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"The bill makes two fundamental changes involving 17 U.S.C. §506 (the section of the Copyright Act that defines “criminal infringement”, i.e., the kind of copyright infringement that can result in jail time) and 18 U.S.C. §2319 (the section of the federal criminal code that spells out the potential penalties for criminal infringement).
S.978 would expand the current definition of “criminal infringement” to include streaming (which the bill refers to as “public performance”). Anyone who engages in the unauthorized public performance of a copyrighted work could be criminally charged, as long as (a) the “public performance” involves making the work available on a publicly-accessible computer network and (b) the work was intended for commercial distribution.
Previously, the statutory definition of “criminal infringement” included only reproduction (i.e., copying) or distribution (i.e., actually transfer or sale of a copy for permanent retention) of a copyrighted work. The expansion to include streaming is seen by the bill’s sponsors as necessary because prosecutors, concerned that the current law arguably doesn’t criminalize unauthorized streaming, have hesitated to try to prosecute streamers.
The penalty for streaming (set out in 18 U.S.C. §2319) would start with three years in prison and fines. Jail time could go as high as ten years if the infringer is a repeat offender.
S. 978 would also insert a new penalty provision into Section 2319 aimed at criminal streaming intended to result in commercial advantage or private financial gain for the infringer. Such infringement would warrant a minimum five-year sentence (plus fine), but only if (a) the offense consists of ten or more “public performances by electronic means” in any 180-day period and (b) either the total retail value of the performances exceeds $2,500 or the fair market value of the license required to offer the performance exceeds $5,000."
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S. 978 is laughable (LoL), ask how much content right holders ask to license one single streaming and you will conclude that any streaming of any kind is subject to that fraking law.
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Nobody here said it is, so put your straw man away.
nor will lip synchers be jailed.
Says you. But, under this law, they *could* be.
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That's nice to hear, but like most of the shilt spewed by the shill/trolls, it's a load of crap. I have a feeling that the word 'streaming' will be re-defined somewhere in the middle of the night in a totally unrelated bill that's somehow related to protecting users from child porn (think of the children, won't you) to be, "Any transmission of data from a storage location to a viewing device."
No I'm not a crackpot conspiracy theorist, but I stayed at a holiday inn last night....
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http://www.govtrack.us/congress/billtext.xpd?bill=s112-978
And if they agree or disagree that working on such a bill fits within the people of those states list of current concerns and highest priorities.
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John Cornyn has 3 more before people can vote him out of office.
Both vote pretty highly with their party. Also, they make a LOT of money through lobbynomics. It's downright disgusting.
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http://maplight.org/us-congress/bill/112-s-978/954321/total-contributions
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If on the other hand, like in sexual assault, manslaughter, and I think 'driving whilst intoxicated (drunk driving)' there is a strict liability created with this very ambiguous law then there is a major problem. Even with Strict liability crimes there is still needed to be the elements of intention, recklessness or reasonable knowledge.
For these very specific laws specific defences and elements need to be known and included as well, otherwise it shouldn't be criminal it should be as it is at the moment a civil problem.
Also I would suggest that any criminal statute like these needs to have at the minimum an absolute defence element as well, sort of like lawful authority, self-defence, necessity etc.
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Now my favorite cam girl is going to have to take the added cuteness of her lip synching to living dead girl out my favorite act of hers... bummer.
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DVDFlow thingies are criminal now?
So if I stream anything I bought and paid for, using my own internet that I pay for and my own computer to my family and close friends that is a crime now?
Fine, I will go to jail.
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"commercial advantage or private financial gain" to include the "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works"
It is a definition well understood and tested in court for more than a decade.
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"Anything of value" sounds like it could include non-financial things like publicity or personal pleasure. So those who derive pleasure from lip syncing or do it for public recognition could go to prison. Nice.
Why don't we just outlaw breathing too while we're at it but let the authorities enforce it at their discretion?
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They have not. To date, a few of you have said "read the bill!" but no one has explained how the interpretation by myself and others is inaccurate.
I see no useful purpose served repeating links, case cites, etc. when the point I am making is that good faith attempts to note that the law is not absolutist are almost invariably met with responses (oftentimes in the form of derision) manifesting a misunderstanding of the substantive law.
You're on an internet forum. Some people are going to say stupid things. Sometimes you say incredibly stupid things. I still respond to you.
Now man up and provide something to back up your point, or admit you DON'T HAVE THE GOODS.
Or, do what you normally do and slink away in disgrace.
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The amendments are quite straightforward and easily comprehended by anyone who takes the time to compare S. 978 to the current iterations of the above noted sections from the USC Code. 506 adds "public performances" to the current "reproduction" and "distribution" rights, and 2319 moves some paragraphs around to accommodate the "public performance" provision.
Earth shattering changes to two longstanding statutes? Hardly, the title of this article notwithstanding. Small wonder I and others have opined "Has anyone actually read S.978?", and "Does anyone expressing indignation have any experience with criminal prosecutions under 2319?" I think not; otherwise they would quickly realize that was is being bandied about by the "OMG - look at what is being done" crowd is no more than attempting to make a mountain out of a mole hill.
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The amendments are quite straightforward and easily comprehended by anyone who takes the time to compare S. 978 to the current iterations of the above noted sections from the USC Code. 506 adds "public performances" to the current "reproduction" and "distribution" rights, and 2319 moves some paragraphs around to accommodate the "public performance" provision.
Yes. As I noted. And that's the heart of the problem. My point still stands.
Nothing you say points out why what I said is incorrect. It seems to only reinforce it.
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http://thomas.loc.gov/cgi-bin/query/z?c112:S.978:
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To "prove" the point one need only raise the spectre of 6 sigma (and higher) possibilities. Even the music labels, to my knowledge, have not pressed the USG's DOJ to classify and pursue under the criminal provisions of Title 18 even some of the more egregious cases of civil infringment.
It seems to me that what is lacking here is even a modicum of perspective and historical analysis of criminal cases actually pursued by the DOJ.
What you say "could" happen is not inaccurate, but it most certainly grossly overstates the reality of the situation to the point that it is terribly misleading and a disservice to those who may actually try to understand the practical implications of S. 978.
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And the entire problem is someone has looked into the raids, already knowing they'll be ineffective. They've looked into the enforcement aspect of copyright and already found it severely lacking in doing what people want it to do.
The media piracy in emerging economies pdf/book has already stated this is severely flawed policy:
http://blogs.reuters.com/felix-salmon/2011/03/29/the-best-report-ever-on-media-piracy/
". As the report says,
we have seen little evidence—and indeed few claims—that enforcement efforts to date have had any impact whatsoever on the overall supply of pirated goods. Our work suggests, rather, that piracy has grown dramatically by most measures in the past decade, driven by the exogenous factors described above—high media prices, low local incomes, technological diffusion, and fast-changing consumer and cultural practices."
No politician is going to understand that. There's even remarks that those in law enforcement have a very hard time grasping cultural aspects of copyright enforcement. Sure, you can sit here and use the talking point of "updating the law to coincide with the 21st century" but it's been clear that a digital copy of a work, does not mean a lost sale. Lost opportunity, maybe, but not a lost sale. People just want to use media in a different way.
S.978 is NOT needed. But given all of the money behind it, ($85 million and counting...), I'm sure it'll pass, causing MORE piracy while criminalizing innocent people. There needs to be more people looking into the consequences of the law, BEFORE it's passed, so the worst parts of this bill (ie ALL of the criminalization) doesn't become a harsh reality.
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No one said that. Must you really lie about what we said?
It's so unbecoming.
To "prove" the point one need only raise the spectre of 6 sigma (and higher) possibilities. Even the music labels, to my knowledge, have not pressed the USG's DOJ to classify and pursue under the criminal provisions of Title 18 even some of the more egregious cases of civil infringment.
I did not say that anyone pressed them to pursue such things. I said -- quite clearly, I believe -- that this gives law enforcement a tool that they *could* use to go after such folks if they wish to.
It seems to me that what is lacking here is even a modicum of perspective and historical analysis of criminal cases actually pursued by the DOJ.
Not at all. It's why I've brought up numerous examples of the DOJ abusing similar broadly defined laws, including the CFAA and the wiretapping laws.
What you say "could" happen is not inaccurate, but it most certainly grossly overstates the reality of the situation to the point that it is terribly misleading and a disservice to those who may actually try to understand the practical implications of S. 978
Ha! So after all of that insisting that we got it wrong, you finally admit that what we said was right all along.
Hilarious.
And, no I did NOT overstate the reality. I said -- quite clearly despite your attempt to claim otherwise -- that no one intended the law to be used this way, but since we have a history of US attorneys abusing broadly defined laws like this in the past that this is a problem.
All I'm asking for is a fix. You admit what I said was accurate, so why not fix it?
In the meantime, I think you owe me a serious apology. You won't do it of course. But, seriously, to argue that I was wrong for so long and then admit that I was right all along. Proves my point: you didn't have the goods. And you dare to complain about how others treat you? Man.
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Of course every law can be abused in one way or another, both by civil litigants and criminal litigants. Nevertheless, the fact that a law can be abused is no good reason to decry a law because someone may try to stretch it to the breaking point. After all, we do have a judicial branch of government that serves as a check on the legislative branch using any number of means at hand to do so. Simply by way of example, it was the judicial branch, and not the legislative branch, that crafted the Fair Use Doctrine to strike a balance between the copyright law and the First Amendment.
It is also possible for one to make a statement that is not inaccurate, but on the other hand provides an entirely misleading picture. I submit that this is what has happened here. A broad, general statement has been made, but in the process of doing so the detailed requirements for the law to even have the potential for being applied are quite strictly drawn such that only particularly egregious conduct would potentially be subject to the law as amended.
Criminal provisions associated with copyright law have been around since at least the 19th Century, and yet prosecutions under such provisions have over that period of time been exceedingly rare.
In summary, context is important, and in order to properly present what S. 928 really means, in my opinion it is misleading to say one thing when actual data demonstrates quite the opposite.
One final point if I may, you mention that all you are asking for is a "fix". Perhaps I have overlooked something and a cite would prove useful, but I do not recall a proposed "fix" having been offered in articles directed to S. 928.
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"If you build it, they will come..."
Offhand, i can't think of a single law with the potential that has not been abused somewhere, by someone.
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Petition to stop this Anti-Streaming bill!
http://www.change.org/petitions/stop-the-anti-streaming-bill-s-978
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