Do The Authors Of The Felony Streaming Bills Even Know What The Details Of Their Own Bills Mean?
from the doesn't-sound-like-it dept
After Justin Bieber himself pointed out how silly the various bills in both the Senate and the House (S.978 and SOPA, respectively) concerning making streaming a felony were, the office of the key sponsor behind S.978, Senator Amy Klobuchar's, insisted that Justin Bieber didn't understand the bill. We've been hearing the same thing from a few others, who insist that, at best, the streaming felony bill might make a service provider liable for felony charges, but would not impact an uploader such as Justin Bieber.After looking over the details, I'm not convinced that's true -- and neither are the folks at Fight for the Future, and some of their legal experts. They've now put up a site called BieberIsRight.org, highlighting the legal problems, and how it appears that Klobuchar and the supporters of SOPA don't even understand their own bills. Part of the claim is that it's only the service provider who would be responsible for the "performance," but that's not supported by the case law. Hell, it's not even supported by Klobuchar's own co-sponsor, Senator Chris Coons, who admitted that it wouldn't just criminalize service providers, but "individuals and sites providing the streamed content."
But the bigger issue highlighted by the site is that there is caselaw showing that "a transmission that ultimately results in a performance to the public is, itself, a public performance." That would suggest that merely uploading to a site that then allows a performance to the public could certainly be interpreted as a public performance. Furthermore, in the case of Bieber, the problem is not that he merely uploaded the videos. I agree that for people who merely upload videos of other people's work, this might not apply. But Bieber clearly was performing the works of others in his videos. The uploading isn't the issue. The performance in the video then combined with the public performance of the infringing video seems like it could easily fall under the law.
Yes, this is a question of interpretations of the law, and a large part of the problem is that the text as Klobuchar and (on the House side) Lamar Smith have put forward, doesn't carefully distinguish, meaning that no matter how many times they insist the law won't apply to people like Justin Bieber, we really won't know that for sure until the courts weigh in -- and the ambiguity, especially given the existing case law, means it's no sure thing. One hopes that the court would give weight to the statements of Klobuchar's staff, but there's no guarantee that they will. Besides, any law that is going to require hunting down the press quotes from staffers to prove that it doesn't mean what it seems to say on its face is, without a doubt, a bad and dangerous law.
So why is Klobuchar so focused on getting it passed?
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Filed Under: amy klobuchar, felony, justin bieber, s.978, sopa, streaming
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No text exists that can't be variously interpreted.
Anyway, yot, may be a few areas to clarify in court, Mike, but nothing new there. I advise staying well clear of the ambiguity. You should as a moral point too. And unless you can show actual wording now that says your worst fears will most certainly come to pass, then "I'm not convinced that's true" is about all we can ever expect.
Meantime, I predict that closer to the bill passing, brisker hard drive sales will be.
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Re: No text exists that can't be variously interpreted.
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Masnick vs. Masnick and friends
All the groups you traditionally defer to as copyright law experts (EFF, Public Knowledge, CDT, CCIA, CEA, ETC.) argued in the 2nd Circuit case between ASCAP and Yahoo!, et al. that a transmission is not a performance unless it results in contemporaneous perceptibility of the work being transmitted. When the Supreme Court agreed with your personal copyright gurus, in addition to the 2nd Circuit and the U.S. Solicitor General, you wrote an October 3 blog posting stating, " it's most likely that this ruling effectively makes it clear across the country that a download is not a public performance. As it should be, because it's not."
And yet now, you argue the exact opposite - namely,that it is an open question as to whether a transmission of a copy might constitute a performance because at some point (next day? Month later?) the copy that is transmitted will result in a public performance.
So which is it? Do you agree with your own blog on October 3, with the 2nd Circuit, Supreme Court, Solicitor General, and with your traditional copyright gurus that a transmission is not a performance unless it is contemporaneously perceptible (in which case YouTube uploads aren't performances)? Or, have you abandoned your opinion from less than one month ago, and do you now think EFF, PK, CDT, CCIA, CEA et al. - in addition to the Supreme Court - are totally wrong?
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Re: No text exists that can't be variously interpreted.
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Re: No text exists that can't be variously interpreted.
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Re: Masnick vs. Masnick and friends
The ASCAP court seemingly states that streaming a work constitutes a performance, whereas non-contemporaneous file transmission (e.g. downloading) constitutes a reproduction. ASCAP at 69 (emph. added):
Thus, if Bieber is violating the reproduction right each time he uploads a video, isn�t he also violating performance right each time a YouTube user streams an infringing video he uploaded?
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Re: Masnick vs. Masnick and friends
Masnick practices it often, as there is no legal or moral justification for his piracy support.
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Re: Re: Masnick vs. Masnick and friends
Are you perchance, a member of Congress? (just saying that because they also don't appear to read things either before putting pen to paper)
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Re: Re: Re: Masnick vs. Masnick and friends
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Re: Re: Masnick vs. Masnick and friends
FInally, Bieber is not the party streaming the video from YouTube each time a YouTube user views a video he has uploaded. Rather, it is YouTube that is engaged in the act of streaming/performance. The stream occurs from a copy residing on YouTube-controlled servers, and as such, it is YouTube that is performing the work streamed. Bieber has no control at that point.
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Re: Re: Re: Masnick vs. Masnick and friends
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Re: Masnick vs. Masnick and friends
If Bieber is not liable under the law nor should those websites be seized then right?
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Re: Re: Re: Masnick vs. Masnick and friends
No? why?
Answer that and you see where this law is going.
We all can see it.
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Re: Re: Re: Re: Masnick vs. Masnick and friends
"Anonymous Coward, Oct 31st, 2011 @ 6:30pm"
They had 38 minutes. I hope it didn't take that long to reply with the two simple "broadbrush" sentences they wrote.
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Re: Re: Re: Masnick vs. Masnick and friends
But that doesn't mean that freebieber.org's underlying argument -- that S.978 and/or H.R.3261 would potentially subject Bieber to felony copyright infringement liability -- is wrong. Your argument that "YouTube is engaged in the act of streaming/performance" is correct from a technological perspective, but incorrect from a legal perspective. Federal courts have repeatedly held that Internet service providers and other OSPs may not be held liable for direct copyright infringement on account of their users' infringing activities. Contributory and vicarious copyright infringement liability may be found in some cases, depending on the specifics (knowledge, inducement, the 17 U.S.C. � 512(C) safe harbor, etc.). Liability for direct infringement ultimately rests with users at whose behest the underlying infringing acts occur. As the Napster court noted, there can be no secondary infringement liability where there is no underlying direct infringement.
See Ellison v. Robertson, 189 F. Supp. 2d 1051, 1056-57 (C.D. Cal. 2002) aff'd in part, rev'd in part and remanded, 357 F.3d 1072 (9th Cir. 2004):
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Re: Re: Masnick vs. Masnick and friends
It is for our own good after all, we are all just children in the eyes of our government, and anything that's "good for the children" gets an automatic seal of approval these days.
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Re: Re: Re: Re: Masnick vs. Masnick and friends
One should never let historical data associated with the prosecution of criminal copyright infringement (about as rare as they come) get in the way of presenting specious hypotheticals "proving" that elected officials are clueless.
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Re: Re: Masnick vs. Masnick and friends
So do you think that repeating over and over that Mike supports piracy will make it so?
Seriously, I'm at a loss as to why you keep beating that drum when it has been pointed out multiple time that you are flat out lying.
Is there a method to your madness or are you simply mad?
It really diminishes anything you try to present.
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Re: Re: Re: Re: Masnick vs. Masnick and friends
You never actually explain why this is true. After this sentence you start explaining why you believe YouTube is not publicly performing the works. Ultimately, Bieber may be violating the reproduction and distribution rights by uploading the video, but without a contemporaneous performance of the work to the public (i.e., a live stream) there is no public performance of the work, and therefore, no liability under the felony streaming act.
Moreover, you're wrong in your YouTube analysis as well. 512(c) insulates OSPs for infringement of copyright by reason of the storage of content at the direction of a user. It does not insulate them from liability for their own public performances of that same content. YouTube publicly performs the works by streaming them to the public. Hence the reason it pays millions of dollars in public performance royalties to performing rights organizations like ASCAP and BMI. If it was exempt under the law, you can be sure YouTube wouldn't be paying performance royalties.
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Your sour grapes posts of the last 7 days have been some of your truly classic work. May I suggest you stop bothering the people in Washington and let them get back to work, without having to listen to your overblown scare mongering?
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Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
As for your second point, care to cite any authorities? I am aware of no cases in which 512(c)-compliant OSPs have been found liable for violating the performance right on account of their users' infringing activities. Moreover, several federal courts have explicitly held that 512(c) covers not only storage but also streaming. See, e.g., UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1083 (C.D. Cal. 2008): It's true that YouTube pays royalties to some rights holders, but that's part of a voluntary agreement it reached with rights holders. YouTube does lots of things voluntarily because it wants to maximize ad revenue. Working with, rather than against, rights holders helps YouTube by reducing the likelihood that popular videos will be abruptly removed. However, that does not mean YouTube would be subject to liability for videos of Bieber's covers if YouTube had no mechanical licenses (assuming, of course, it satisfied the 512(c) safe harbor requirements, etc.).
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Re: Masnick vs. Masnick and friends
All the groups you traditionally defer to as copyright law experts (EFF, Public Knowledge, CDT, CCIA, CEA, ETC.)
To be clear, I don't consider any of those "copyright law experts." The copyright law experts I tend to rely on are folks like Bill Patry and Jamie Boyle who are, indeed, experts in the field. I may frequently agree with EFF/PK/et al., but I generally don't consider them "gurus" when it comes to copyright law).
But I love how all you guys always like to lump me together with groups you love to hate.
When the Supreme Court agreed with your personal copyright gurus, in addition to the 2nd Circuit and the U.S. Solicitor General, you wrote an October 3 blog posting stating, " it's most likely that this ruling effectively makes it clear across the country that a download is not a public performance. As it should be, because it's not."
Right.
And yet now, you argue the exact opposite - namely,that it is an open question as to whether a transmission of a copy might constitute a performance because at some point (next day? Month later?) the copy that is transmitted will result in a public performance.
Except I did no such thing. Please read the post again.
And if you can't see the difference between a person making an individual decision to download a single music file, and posting a video to a website for public viewing... well, I would imagine most judges may interpret it differently.
Though, knowing you, I fully expect in a year or two -- should the felony streaming bill pass -- to see you at some conference arguing that efforts like Biebers (though you'll choose someone less famous, of course) are clearly infringing. Hell, I remember watching you tapdance your way around your explanation of how Cablevision was clearly infringing with its DVR case.
So this is a neat trick. Lie about how you'll argue concerning the law in a few years... and do so under an alias.
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Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Ryan didn't argue that. Why would you state that?
Separately, I should remind you that on a near daily basis you feel the need to criticize me for my "insulting" language towards you. And then you pull this childish shit?
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Re:
TAM, I have to say when your entire argument is based on what I never actually said, you know you pretty much have failed.
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Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
You know because it infringes we all know it has infringement happening on it so if it is liable then why it was not shut-down?
Did you not see Viacom try the same logic already and failed in court?
The one thing it shows is that for Google there is one set of interpretation of the laws being done and for Rojadirecta there is another set of rules, that is not consistent.
You also can't show how people will not be violating anything.
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Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
So you're saying it won't make a difference anyway because even if it does pass it won't be successfully used enough to affect a significant number of people? Can you explain then how passing a law known to be ineffective doesn't come under the definition of clueless? (Ideally without the obvious answer of "because they got a big fat donation to do so")
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Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Curious why no comment was made regarding historical data concerning the use of criminal law in the context of copyright infringement. It would certainly help to put things into context and the realities of how our system of criminal justice really works.
Once again, you last comment is nothing more than a gratuitous attempt to denigrate a person making a comment with which you happen to disagree. Reasonable people will always disagree on issues, but that does not translate into personal attacks.
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Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
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Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
No, not capiche. It comes back to the definition of a "public performance" under the Copyright Act. The Second Circuit held, and the Supreme Court declined to modify, precedent requiring a contemporaneous perception of the content by the public. You haven't shows this occurs when a user uploads a video to YouTube, because it doesn't. You have shown that there is ultimately a public performance (done by someone else I might add), but not a contemporaneous one. I am aware of no precedent holding that this constitutes a public performance.
I am aware of no cases in which 512(c)-compliant OSPs have been found liable for violating the performance right on account of their users' infringing activities.
You are correct, thanks for bringing this to my attention. Do you know if any appellate level courts have made this same finding (or any NY courts)?
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Re: Re: Masnick vs. Masnick and friends
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Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Last reading of the Constitution, there is mention of copyright and patents. I don't remember anything about performance rights, personality rights, celebrity rights, or any other kind of IP rights.
So, where is the basis for any of these extensions?
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Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
The DOJ saves it time and energy for especially egregious conduct. Hence, the dearth of prosecutions for criminal copyright infringement.
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Breaking News - re: do authors of bills understand etc.
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Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
I am aware of no case explicitly holding that actions closely resembling Bieber's violate the performance right, but reading the pertinent case law as a whole, it seems to me that Bieber performed the songs publicly via electronic means.
Let's break the issue down into its elements. Here are what I view as the two questions presented in determining whether Bieber himself violated the performance right:
1) Did an infringing public performance occur?
2) If so, who is the principal (the actor primarily responsible for a criminal offense)?
As for (1), see my comment above in which I cite the ASCAP case. In ASCAP the court held at 69 that streaming songs over the Internet to the public a constitutes a public performance. Each time a user viewed one of Bieber's videos on YouTube, a contemporaneous transmission occurred in which the infringing video was perceived by the user in real-time. Based on ASCAP, and assuming the user did't download the file but instead actually watched in on YouTube (or via an embed), a public performance occurred.
As for question (2), see Napster at 1013, which I also cited in my comment above. Here is a relevant excerpt from the opinion (A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)): In Napster, the unauthorized distribution was technically performed by Napster servers. Yet the court nonetheless held that Napster's users, rather than Napster itself, were directly liable for civil infringement. (Napster was found to be secondarily liable.) This makes sense: if you use my car to murder somebody, I am not the principal, you are. The fact that you used my property as an instrumentality with which to commit a crime does not absolve you of direct liability. Depending on the circumstances, I may be civilly or criminally liable, but not on a direct basis. In the civil context, I could be contributorily or vicariously liable. In the criminal context, I could be aiding and abetting, or an accessory to the crime (where permitted by statute).
Relating all this back to Bieber, it was his deliberate action of uploading infringing videos to YouTube that directly caused the resulting public performances. He knowingly uploaded infringing videos with the intent that untold users would subsequently stream his videos. The tens of millions of streams of Bieber's videos were the foreseeable and direct result of Bieber's volitional actions. Had he hosted the videos on his own server in his own home, he would face the same liability. That he used YouTube's servers is irrelevant in determining Bieber's liability, since he is clearly the principal. YouTube likely had no actual knowledge of Bieber's videos at the time they were uploaded, nor did YouTube have intent to infringe. Bieber, conversely, was presumably well aware that his videos depicted unauthorized recitations of copyrighted compositions, and he intended to perform them electronically in uploading the videos to YouTube.
You are correct, thanks for bringing this to my attention. Do you know if any appellate level courts have made this same finding (or any NY courts)?
I'm not aware of any appellate rulings yet, but stay tuned to the Veoh case before the 9th Circuit and the YouTube case before the 2nd Circuit. Terry Hart recently analyzed this very issue over at Copyhype and does a nice job laying out the issues. For an NY court's take on this, see Viacom Int'l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 527 (S.D.N.Y. 2010):
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Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
To be sure, I'm all for prosecutorial discretion, but it should augment, not supersede, carefully and narrowly crafted statutes. As former U.S. Attorney General Edwin Meese of the conservative Heritage Foundation has argued, overcriminalization is a serious and growing problem in America. For more about this, see this recent Wall Street Journal expose that discusses how two men were charged with federal felonies merely because they were found digging for arrowheads at their favorite campground. Here's an excerpt:
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So why is Klobuchar so focused on getting it passed?
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Re: No text exists that can't be variously interpreted.
And once again you show that you have no idea what you are talking about, gratz
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Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Because the majority of infringement happening in the past has been a civil issue. Changing the law so the majority of infringement becomes a criminal issue is certainly going to increase the amount of criminal charges pursued.
If they don't have plans to use the law, why push for it. If existing laws cover all of this why make new ones?
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Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
The court was speaking to the direct acts of infringement committed by the users when they uploaded or downloaded content, and not of Napster's act of distributing that same content via the Napster servers. See 239 F.3d at 1014.
This makes sense: if you use my car to murder somebody, I am not the principal, you are.
This is circular. You haven't committed murder if your acts don't satisfy the legal elements of murder. Uploading a video doesn't satisfy the elements of a public performance.
Relating all this back to Bieber, it was his deliberate action of uploading infringing videos to YouTube that directly caused the resulting public performances.
That does not transform his upload into a public performance. There is no contemporaneous perception by users. Are you trying to make out a conspiracy charge here? Quite a stretch.
That he used YouTube's servers is irrelevant in determining Bieber's liability, since he is clearly the principal.
That is not correct. YouTube publicly performs the works. You could try to argue conspiracy or aiding and abetting copyright infringement, but it's not supported by any relevant case law.
YouTube likely had no actual knowledge of Bieber's videos at the time they were uploaded, nor did YouTube have intent to infringe. Bieber, conversely, was presumably well aware that his videos depicted unauthorized recitations of copyrighted compositions, and he intended to perform them electronically in uploading the videos to YouTube.
I admire the law school essay, but your answer tries far too hard to make a square peg fit into a round hole. Uploading a video to YouTube is not a public performance, because it does not result in a contemporaneous public performance. YouTube is the party publicly performing the work, regardless of whether they may be legally liable for doing so under the DMCA. Your secondary liability and principal/agent distinctions are misplaced in this context, removed from any relevant case law on point, and hardly a reason to claim that the misguided "freebieber" campaign's arguments are worth our attention or concern.
I would recommend that you avoid the temptation to defend your positions at the cost of stretching legal arguments too far (as we must all do from time to time).
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Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Ah.. I see. So in fact you're saying "well EVERYONE is a criminal but we'll just choose which ones we actually prosecute for it because there isn't anything in the law that defines 'especially egregious' other than what we feel like on the day".
Yes, that's much better.
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Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Napster servers did NOT distribute the infringing copies at issue. In case you don't know how P2P works, Napster servers told one user they could find the file they wanted on another user's computer, but the files were actually distributed directly from the providing user's computer to the downloader's computer, and the file NEVER passed through any computers controlled by Napster. This is why the Napster end users were guilty of direct infringement by distribution and reproduction of copies, and why Napsterr was only liable for contributory infringement. In fact, Napster tried to claim 512 protection and the court specifically REJECTED it on the very grounds that the infringing files never passed "through" the network controlled by Napster.
There is really no reasonable question that YouTube is performing the Bieber videos, not Bieber, when they are later viewed by YouTube users. You don't seem to want to believe logic or the law on point (Cartoon Newtorks vs. Cablevision, MP3.com case; MP3tunes.com case, etc.), so how about you believe YouTube itself? YouTube doesn't question the fact that it is, in fact, the performer (for copyright purposes) of videos on its site. That is why they pay for a blanket license from ASCAP and BMI, it is why they have sought licenses from the record companies for the right to stream music videos, and the sound recordings included in videos, and it is why they don't stream movies or TV shows without a license.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
However, I maintain my original contention that Bieber, not YouTube, was the performer. While no cases support my contention directly, I do not see how the cases you cite state otherwise. In fact, the Cartoon Network court explicitly declined to answer the very question of whether Cablevision or its customers were performing for purposes of the Copyright Act. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 134 (2d Cir. 2008):
The MP3.com case is inapposite because MP3.com held "master copies" of songs, making it the principal public performer, unlike YouTube (which holds one copy of each video file, including those which are substantially similar). In MP3Tunes, the court denied EMI's motion for summary judgment in most respects in August 2011, in part because it is unclear whether MP3Tunes engaged in infringing public performances.
YouTube users uploading videos must grant YouTube a performance license. From YouTube's ToS, 6(c):
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Also, see United States v. Gooding, 25 U.S. 460, 469, 6 L. Ed. 693 (1827): While Bieber's uploaded videos were not contemporaneously streamed as the uploads took place, his willful actions directly caused YouTube's servers to contemporaneously stream his videos to tens of millions of individuals. While YouTube technically engaged in the performance, the service was merely an innocent agent -- an unwitting instrumentality to Bieber's (possibly) criminal act. Bieber had actual knowledge that his action of posting a video to YouTube would result in YouTube's servers publicly performing copyrighted compositions. Indeed, that was the very reason he uploaded his videos in the first place!
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Re: No text exists that can't be variously interpreted.
Except of course this isn't in the U.S. Constitution.
I'm not disagreeing this law is a disaster, but it would help my side out if they'd stop being equally as ignorant over what the Constitution does/doesn't say.
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