Yes, You Can Compete With Free, But It Has To Be Done Right

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

Mon, Oct 31st 2011 3:53pm — Mike Masnick

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

55 Comments

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rw (profile), 31 Oct 2011 @ 3:24pm

Money.
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That Anonymous Coward (profile), 31 Oct 2011 @ 4:00pm

Of course they have no idea what it actually says, they don't read them. They get handed something with a "donation" and they hop behind it. And its worse now because they can always just say... well maybe we'll give this donation to who ever is running against you next...
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The Incoherent One (profile), 31 Oct 2011 @ 4:06pm

MPAA/RIAA: Re-election Money, (doing dance) Yes Masta I get that bill passed for ya. You just keep them contributions (thought it was for the artists) a coming, and I will keeps signing your legislations for you.
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Anonymous Coward, 31 Oct 2011 @ 4:18pm

Why would these congresspeople know? They're not the authors.
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anonymous, 31 Oct 2011 @ 4:23pm

bullshit baffles brains every time. same thing with money. throw enough in the right direction and common sense, decency and 'what i was voted into power for' goes straight out the window!
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Anonymous Coward, 31 Oct 2011 @ 4:57pm

Our elected officials don't even bother to hide the fact that they are on the take any more. Obama cried his eyes out when the Supreme Court overrules and allowed corporations to donate more than they previously could but now he and his administration feed at the trough like all the other pigs. Absolutely sickening.
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out_of_the_blue, 31 Oct 2011 @ 5:06pm

No text exists that can't be variously interpreted.
Start with the Constitution: "... that all men are created equal... ". -- While persons who signed that owned /slaves/. Flat out contradictions don't bother The Rich so long as to there advantage.

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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out_of_the_blue, 31 Oct 2011 @ 5:08pm

Re: No text exists that can't be variously interpreted.
OH, NO! I've made the dreaded "there" vs "their" mistake!
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Steer, 31 Oct 2011 @ 5:24pm

Masnick vs. Masnick and friends
Mike,

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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abc gum, 31 Oct 2011 @ 5:36pm

Re: No text exists that can't be variously interpreted.
We hold these truths to be self-evident, that all donations are created equal, that they are endowed by their Creator with certain unalienable Privledges,[74] that among these are Money, Power and the pursuit of Totalitarianism.
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Larry, 31 Oct 2011 @ 5:52pm

Re: No text exists that can't be variously interpreted.
Ah, the "blame someone else for my idiocy" stance. How proud of yourself you must certainly be.
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RyanRadia (profile), 31 Oct 2011 @ 5:52pm

Re: Masnick vs. Masnick and friends
Bieber's problem isn't that he made his performances available for download, but that he made them available for contemporaneous public performance by streaming them on YouTube. YouTube's servers were the facilities Bieber used to stream his videos, which he uploaded with the intent that users would access them contemporaneously. As such, he is the principal with direct liability for the streams, not YouTube. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001) (holding Napster secondarily liable for its users' direct infringement via Napster facilities).

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):

RealNetworks performs music in audio and audio-visual contexts through a number of websites and subscription services. Like Yahoo!, these sites and services publicly perform musical works in numerous formats, including, inter alia, radio, television, movie, game, and music-video formats. Also like Yahoo!, only a portion of the content on RealNetworks� sites and services consist of performances of musical works. In addition to performing music on websites and through services, the Internet Companies offer to users copies of recordings of musical works through download transmittals.�

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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Anonymous Coward, 31 Oct 2011 @ 6:30pm

Re: Masnick vs. Masnick and friends
We refer to it as "pretzel FUD".

Masnick practices it often, as there is no legal or moral justification for his piracy support.
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DogBreath, 31 Oct 2011 @ 7:44pm

Re: Re: Masnick vs. Masnick and friends
Said the AC who failed reading, totally ignored or completely and utterly disavows knowledge of the post RyanRadia made directly above him as to the legal ramifications of such an ill-conceived law, S.978 and SOPA, as they are currently written (streaming vs. downloading).

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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Anonymous Coward, 31 Oct 2011 @ 7:48pm

Re: Re: Re: Masnick vs. Masnick and friends
To be fair, it probably took them more than eight minutes to write their comment.
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steer, 31 Oct 2011 @ 7:51pm

Re: Re: Masnick vs. Masnick and friends
No, you're wrong. The accusation made by Mike and the freebieber.org crowd is that Bieber's act of uploading the videos to the YouTube servers subjects him to liability under S. 978. For that to be true, his act of uploading has to constitute a public performance, and for it to constitute a public performance under Mike's October 3 theory, it has to be contemporaneously perceptible. However, YouTube has a lengthy delay between when a video is actually uploaded to its servers, and when it actually becomes available for viewing by a YouTube user. Therefore, an upload to YouTube is not a performance within the definition that Mike and all his copyright gurus have previously supported. "contemporaneous perceptibility" means, according to the courts, that the transmission can be seen at literally the same time that it is transmitted. It may even mean that the transmission cannot be cached in RAM for more than the minimum amount of time necessary in order for the transmission to be considered a performance rather than a download. None of which applies to a YouTube upload.

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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Anonymous Coward, 31 Oct 2011 @ 7:59pm

We already know how the courts will rule, they will do everything in their power to strech the meaning of the law to punished the people who they label "criminals".
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Anonymous Coward, 31 Oct 2011 @ 8:01pm

Re: Re: Re: Masnick vs. Masnick and friends
Then comes the part of contributory and accessory to a crime.
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Anonymous Coward, 31 Oct 2011 @ 8:06pm

Re: Masnick vs. Masnick and friends
And yet here we are with ICE seizing domains from websites that don't stream anything and just point to people who do.

If Bieber is not liable under the law nor should those websites be seized then right?
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Anonymous Coward, 31 Oct 2011 @ 8:11pm

Re: Re: Re: Masnick vs. Masnick and friends
Can Rojadirecta count on that interpretation since they didn't do any streaming on their own?

No? why?

Answer that and you see where this law is going.

We all can see it.
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DogBreath, 31 Oct 2011 @ 8:12pm

Re: Re: Re: Re: Masnick vs. Masnick and friends
"RyanRadia (profile), Oct 31st, 2011 @ 5:52pm"

"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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Anonymous Coward, 31 Oct 2011 @ 8:14pm

This proposals also would make incidental streaming of media to the public a crime, if anybody doesn't secure their wireless and is caught transiting content into the airwaves they all be criminals.
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RyanRadia (profile), 31 Oct 2011 @ 8:19pm

Re: Re: Re: Masnick vs. Masnick and friends
If Mike or freebieber.org are claiming that Bieber's mere act of uploading his infringing videos to YouTube is a violation of the performance right, I think that's wrong based on ASCAP. Rather, his act of uploading is a violation of the reproduction right. Had no users watched Bieber's videos, no performance rights would have been infringed.

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):
AOL's role in the infringement as a passive provider of USENET access to AOL users cannot support direct copyright infringement liability. See Religious Technology Center v. Netcom On�Line Communication Services, Inc., 907 F.Supp. 1361, 1372�73 (N.D.Cal.1995). In Netcom, the court held that the defendant, an internet services provider like AOL, could not be found guilty of direct copyright infringement based on copies of works that were made and stored on its USENET servers. See id; accord ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4th Cir.2001); Costar Group, Inc. v. Loopnet, Inc., 164 F.Supp.2d 688, 696 (D.Md.2001).
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DogBreath, 31 Oct 2011 @ 8:25pm

Re: Re: Masnick vs. Masnick and friends
They're seizing them under the "secret interpretation" of the law. You know, the one we're not allowed to see or even know about.

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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Anonymous Coward, 31 Oct 2011 @ 9:07pm

Re: Re: Re: Re: Masnick vs. Masnick and friends
OMG, adding public performances to the current list of rights that may be prosecuted (reproduction and distribution) will absolutely kill the internet and send Justin and parents of babies to jail.

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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Atkray (profile), 31 Oct 2011 @ 9:14pm

Re: Re: Masnick vs. Masnick and friends
Ah the new word for November is Pretzel FUD. Thank you.

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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Anonymous Coward, 31 Oct 2011 @ 9:55pm

Re: 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.

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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Anonymous Coward, 31 Oct 2011 @ 10:02pm

Mike, I have to say when your entire argument is "based on what Beiber said..." you know you pretty much have failed.

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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RyanRadia (profile), 31 Oct 2011 @ 10:37pm

Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
It appears that Bieber may well have willfully uploaded videos to YouTube depicting his unauthorized recitations of copyrighted musical works. Bieber's uploads directly and at his behest resulted in tens of millions of streams (public performances) of these unauthorized videos, violating performance rights. Ergo, he may be criminally liable under H.R. 3261 � 201, if prosecutors could show the preceding elements beyond a reasonable doubt. Capiche?

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):
UMG contends that Veoh does not qualify for � 512(c) immunity because of four functions performed by Veoh's software which are allegedly not �storage� and are not undertaken �at the direction of a user.� The Veoh software functions [include] . . . allowing users to access uploaded videos via a technology called �streaming� . . . [T]he Court holds that the four software functions at issue do fall within the scope of the � 512(c) safe harbor because they are undertaken �by reason of the storage at the direction of a user.�
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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Mike Masnick (profile), 31 Oct 2011 @ 11:04pm

Re: Masnick vs. Masnick and friends
"steer"

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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Mike Masnick (profile), 31 Oct 2011 @ 11:05pm

Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
OMG, adding public performances to the current list of rights that may be prosecuted (reproduction and distribution) will absolutely kill the internet and send Justin and parents of babies to jail.

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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Mike Masnick (profile), 31 Oct 2011 @ 11:07pm

Re:
Mike, I have to say when your entire argument is "based on what Beiber said..." you know you pretty much have failed.

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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Rekrul, 31 Oct 2011 @ 11:36pm

It doesn't matter what the original intent of the law is, it will be stretched and abused in every way possible. If anyone wants proof of this, they need look no further than the cases of teenagers being charged as child pornographers for taking nude photos of themselves.
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Anonymous Coward, 1 Nov 2011 @ 2:31am

Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Why do ASCAP and BMI do not shut-down Youtube?
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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Anonymous Coward, 1 Nov 2011 @ 4:24am

Re: Re:
Who is TAM?
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Not an Electronic Rodent (profile), 1 Nov 2011 @ 4:59am

Re: 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.

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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Anonymous Coward, 1 Nov 2011 @ 6:23am

Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Sometimes comments are made tongue-in-cheek, and incorporate background information contained in earlier articles and comments to such articles. I believe this to be the case here.

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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The eejit (profile), 1 Nov 2011 @ 7:21am

Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Perhaps because, excepting rare circumstances, copyright infringement is not a crime.
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Anonymous Coward, 1 Nov 2011 @ 8:08am

Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
It appears that Bieber may well have willfully uploaded videos to YouTube depicting his unauthorized recitations of copyrighted musical works. Bieber's uploads directly and at his behest resulted in tens of millions of streams (public performances) of these unauthorized videos, violating performance rights. Ergo, he may be criminally liable under H.R. 3261 � 201, if prosecutors could show the preceding elements beyond a reasonable doubt. Capiche?

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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Anonymous Coward, 1 Nov 2011 @ 8:11am

Re: Re: Masnick vs. Masnick and friends
God, Mike, I thought Steer posted a legitimate challenge. You seem so full of hate and anger.
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Anonymous Anonymous Coward, 1 Nov 2011 @ 9:11am

Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
"OMG, adding public performances to the current list of rights that may be prosecuted "

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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Anonymous Coward, 1 Nov 2011 @ 9:14am

Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
No, that is not what I am saying. Historical data reveals that the pursuit of criminal charges is very, very rare. There is absolutely no reason to believe that this amendment will change things to any significant degree.

The DOJ saves it time and energy for especially egregious conduct. Hence, the dearth of prosecutions for criminal copyright infringement.
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j. doe, 1 Nov 2011 @ 9:59am

Breaking News - re: do authors of bills understand etc.
This just in: No. They do not understand, or care,for the most part; the bills are mostly written by lobbyists. It is a game called Charades, and Let's Make A Deal. It is important to pretend to know and act confidently, so much the better with a good weave and bright smile.
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RyanRadia (profile), 1 Nov 2011 @ 11:26am

Re: 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 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)):
Plaintiffs claim Napster users are engaged in the wholesale reproduction and distribution of copyrighted works, all constituting direct infringement. . . . The district court agreed. We note that the district court's conclusion that plaintiffs have presented a prima facie case of direct infringement by Napster users is not presently appealed by Napster.
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):
As stated in Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132, 1148 (N.D.Cal.2008), such �means of facilitating user access to material on its website� do not cost the service provider its safe harbor.
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RyanRadia (profile), 1 Nov 2011 @ 11:38am

Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
That criminal copyright infringement prosecutions occur quite rarely is a weak justification for recklessly expanding the criminal code further. Just as past performance does not predict future returns in the world of investing, a history of prosecutorial restraint tells us surprisingly little about what may happen a decade or two (or a century) down the line.

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:
The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws�as opposed to state or local laws�as the federal justice system has dramatically expanded its authority and reach. As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don't necessarily need to show that the defendant had criminal intent.
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Mike Raffety (profile), 1 Nov 2011 @ 11:48am

So why is Klobuchar so focused on getting it passed?
That's easy, check her campaign donor records. At least those still have to be published.
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hothmonster, 1 Nov 2011 @ 2:09pm

Re: No text exists that can't be variously interpreted.
"Meantime, I predict that closer to the bill passing, brisker hard drive sales will be."

And once again you show that you have no idea what you are talking about, gratz
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Anonymous Coward, 1 Nov 2011 @ 2:18pm

Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
"Historical data reveals that the pursuit of criminal charges is very, very rare."

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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Anonymous Coward, 1 Nov 2011 @ 6:44pm

Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
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.

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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Not an Electronic Rodent (profile), 2 Nov 2011 @ 2:56am

Re: 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.

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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steer, 2 Nov 2011 @ 10:30am

Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
Boy are you wrong.

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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RyanRadia (profile), 2 Nov 2011 @ 12:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
I misrepresented the Napster case. Thank you for pointing it out. I incorrectly recalled the Napster technology as involving the centralized distribution of songs through Napster servers. In fact Napster servers only offered a centralized file index. As such, the case does not support my contention. My bad.

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):
Cablevision contends that (1) the RS�DVR customer, rather than Cablevision, does the transmitting and thus the performing . . . As to Cablevision's first argument, we note that our conclusion in Part II that the customer, not Cablevision, �does� the copying does not dictate a parallel conclusion that the customer, and not Cablevision, �performs� the copyrighted work. The definitions that delineate the contours of the reproduction and public performance rights vary in significant ways. For example, the statute defines the verb �perform� and the noun �copies,� but not the verbs �reproduce� or �copy.� Id. We need not address Cablevision's first argument further because, even if we assume that Cablevision makes the transmission when an RS�DVR playback occurs, we find that the RS�DVR playback, as described here, does not involve the transmission of a performance �to the public.�

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):
For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels
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RyanRadia (profile), 2 Nov 2011 @ 12:50pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Masnick vs. Masnick and friends
While no case law directly supports my argument (since no prosecution of an individual in Bieber's position has ever taken place), I don't think it's fair to characterize my argument as a "stretch" in light of U.S. criminal laws and precedents. 18 U.S.C. � 2(b) states that "[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
Also, see United States v. Gooding, 25 U.S. 460, 469, 6 L. Ed. 693 (1827):
[I]t is the known and familiar principle of criminal jurisprudence, that he who commands, or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act. This is so true, that even the agent may be innocent, when the procurer or principal may be convicted of guilt, as in the case of infants, or idiots, employed to administer poison.
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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Chilly8, 11 Nov 2011 @ 7:31pm

The House bill is worse than the Senate bill. The Senate bill requires that it be for commercial purposes,the House bill does not. The Senate bill does not criminalise view the videos, the house bill does, becuase, again, there is no requirement that infringment be for commercial or financial gain.
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Anonym Izer, 29 Dec 2011 @ 5:18pm

Re: No text exists that can't be variously interpreted.
Start with the Constitution: "... that all men are created equal... ".

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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