Harvard Law Professor Explains Why Felony Streaming Provisions Do Put Justin Bieber At Risk Of Jail

from the not-so-simple... dept

Fri, Dec 9th 2011 5:38pm — Mike Masnick

There's been a bit of a back and forth over whether or not S.978 in the Senate and the felony streaming provisions of SOPA in the House would, in fact, put Justin Bieber at risk of jailtime for uploading videos of himself covering songs without permission of the copyright holder. There appeared to be enough that was vague in both laws that it could be interpreted that way, and that seems quite troubling for a variety of reasons. First, you don't want something that lots of people do every day to suddenly become a felony. Second, any law that is vague enough that such a result might happen is a law that should not be passed. The Bieber risks jail meme got plenty of attention. However, defenders of the law swear up and down that this is ridiculous and the law does not, in fact, put Bieber at risk. Many people (especially in our comments) rely on recent law school grad Terry Hart's analysis, in which he dismisses the arguments of those who think Bieber is at risk. Hart's analysis got picked up by other sources, including Billboard, and now supporters of the bill insist that there is no debate here. Bieber is not at risk.

I felt that Hart's analysis was lacking, especially when it came to the issue of embedding videos. Hart mainly focuses on whether or not an upload is a public performance -- since the crux of these bills is that they're making certain forms of public performances felonies. But there's more going on than just the upload. Either way, when Harvard law professor Jonathan Zittrain appeared last week on Colbert, arguing about SOPA, he used the Bieber example, claiming that Bieber faced three years in jail, rather than the five that most people had been mentioning. In my post, I pointed this out, along with my thought that perhaps Bieber had to embed the video to be liable for the performance. Zittrain emailed me to discuss, and after going through the details with him, it appears that I was mistaken, and Zittrain's analysis makes a lot of sense. Hart's analysis, on the other hand, seems to be missing lots of key points. With permission, I'm publishing sections of our email discussion.

First, on the question of whether or not it's three years or five years, Zittrain points out that if you follow carefully the details of the bill (which is tricky, because SOPA amends two existing acts, and you have to keep track of what's pointing at what, and what language changes), it's likely Bieber faces three years for his first video upload. The issue is that within Section 201 of SOPA, it would change Section 506 of copyright law in a few ways. But the one that matters, is 17 USC 506(a)(1)(b), not (a)(1)(a). In case you don't want to track it down, (b), as a part of explaining criminal copyright infringement, notes that the following qualifies:

by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000...

This is what Bieber would be accused of doing. Then, if you look at the corresponding statute (Title 18, section 2319), the part that says five years, 17 USC 506(a)(1)(a), rather than 17 USC 506(a)(1)(b). The section that covers (b) (which is 18 USC 2319(c)(1)) says "shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both." Three years it is!

Well... except that if you then read the next section, 18 USC 2319(c)(2), you realize that 3 years may only count for one video. A second video could net him 6 years:

shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a);

Oops. Even worse than five years.

But what about Hart's mantra that Bieber has nothing to fear because an upload is not a performance. That analysis appears to be quite lacking. Zittrain notes that Hart appears to be talking about something different (the upload), rather than the act of causing it to be performed:

No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 17 USC 101:
To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.

Basically, by causing the infringing work to be performed, he could be very much liable under SOPA, contrary to Hart's analysis. As Zittrain noted later in our conversation, the real problem here is just how broadly this is drafted, because no matter what the true intentions may be, the fact that it very easily could be read this way is quite troubling. He notes that there is simply

no defense for broad drafting of a new felony in U.S. criminal law. When crafting a criminal statute with serious jail time at stake, it's incumbent on the legislators to properly narrow the scope of the law, rather than to write a really broad law and then count on prosecutorial discretion to ensure it isn't misapplied.

And that's really the key issue. The fact that you can construct a very credible argument that the law puts Bieber in jail... even if others can construct an argument that it doesn't is a huge problem in and of itself. Criminal law should not be open to such broad interpretations.

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Filed Under: amy klobuchar, copyright, jonathan zittrain, justin bieber, streaming

36 Comments

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Jazz Culture, 9 Dec 2011 @ 5:45pm

I never thought of this. They wouldn't do anything to Bieber because he's a celebrity. But do we really care if he does upload the videos?
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Anonymous Coward, 9 Dec 2011 @ 5:56pm

Re:
You missed the point there. He was not always a celebrity. So in the beginning he would have been given 3 years for the first video, assuming that Canada would extradite him and the law was on the books.
Bieber is chosen as the poster child for the law as his fame came from YouTube, posting covers of copyrighted work. So any one following the same path would be a Felon in the United States.
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Anonymous Coward, 9 Dec 2011 @ 6:09pm

Re: Re:
Then SOPA should have been in place years ago... At least ONE good would have come out of it.

But if it comes into law now, we can avoid more Beibers?

Sigh... way to make a guy choose...
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Anonymous Coward, 9 Dec 2011 @ 6:11pm

It's a wonderful thing, except for one little, itty-bitty little piece of information that you are carefully leaving out (or intentionally ignoring):

UP TO

Basically, the courts could find him guilty, and fine him $1, with zero days in jail. That is the miracle of the legal system, that even if you are guilty, the courts have all sorts of leeway to decide how severe the situation is.

Up to doesn't mean "you have to do this", it sets a maximum. The minimum by statued is ZERO.

Nice try to scare monger there Mike.

Oh yeah, exactly how is that different from the EXISTING copyright laws?
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Anonymous Coward, 9 Dec 2011 @ 6:21pm

Re:
Okay, I'm going to put you in jail for up to 100 years for being an idiot.

But don't worry, it may only be a day. Nothing to worry about. Move along.
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Anonymous Coward, 9 Dec 2011 @ 6:25pm

Re: Re:
Yeah, and since I am not much of an idiot at all, I expect the judge to give me 1 day.

You on the other hand, well, you risk a double life sentence.
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Anonymous Coward, 9 Dec 2011 @ 6:32pm

Re:
So if it's not different from existing copyright laws, care to explain why SOPA will make a difference and why it's needed?
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Anonymous Coward, 9 Dec 2011 @ 6:37pm

Re:
"Oh yeah, exactly how is that different from the EXISTING copyright laws?"

If you're saying the bill doesn't DO anything, why do we need it?

"Basically, the courts could find him guilty, and fine him $1, with zero days in jail."

I'm not sure they have THAT much discretion... but even if they do, it's still a FELONY. That alone is something major, even if it could somehow come with no fine or prison time.
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xebikr (profile), 9 Dec 2011 @ 6:39pm

Re:
Have a cookie, troll.

So you admit that JB could possibly be prosecuted criminally for his little YouTube videos, and your defense is that the judge possible might give him a light sentence? That might be the lamest argument I've read here all day. And I read *TWO* OotB posts!
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Anonymous Coward, 9 Dec 2011 @ 6:47pm

Re: Re: Re:
Oh good, you've missed the point, proving it even more.
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Anonymous Coward, 9 Dec 2011 @ 7:09pm

It is useful to keep in mind that under the current provisions of Titles 17 and 18 Mr. B could already be prosecuted for criminal copyright infringement. The proposed amendment would increase the potential penalty for a public performance, which right now provides for incarceration of not greater than one year.
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Anonymous Coward, 9 Dec 2011 @ 8:09pm

Re: Re: Re:
Judge William Adams beats daughter for using the internet

Seeing how all lower courts in the US are apparently full of hicks you most probably end up with a 100 years.
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Anonymous Coward, 9 Dec 2011 @ 8:14pm

Re:
Hey Damocles come seat here on the defendants chair please.
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Anonymous Coward, 9 Dec 2011 @ 9:02pm

LMFAO song Party Rock Anthem top track on iTunes UK

iTunes is now officially the new Billboard.
If you want to be a success you need to talk to Apple LoL
Soon Amazon music and Google music will become something else too.

On the other hand people apparently don't know that what they are doing is "stealing".

Quote:
But I was just as amused by the video description:

"The legendary movie itself placed into chronological order. If you'd like me to put the full movie itself up, let me know and I'll be glad to oblige. Please no copyright infringement. I only put this up as a project."

These "no copyright infringement intended" messages are everywhere on YouTube, and about as effective as a drug dealer asking if you're a cop. It's like a little voodoo charm that people post on their videos to ward off evil spirits.

How pervasive is it? There are about 489,000 YouTube videos that say "no copyright intended" or some variation, and about 664,000 videos have a "copyright disclaimer" citing the fair use provision in Section 107 of the Copyright Act.

Source: http://waxy.org/2011/12/no_copyright_intended/

Everybody else don't see copyright infringement as such only a fringe group inside society think it is, that is just priceless. Culture moves on despite some loners trying to stop it.

Meanwhile some people knowledgeble about copyrights are trying to offer some ways to fix it and the first part of it is to stop creating new laws without understanding why they are being created and trying to get legislation based on real facts instead of the mambo jumbo that the fringe group of content owners employs today.

Quote:
I agree with this approach, though two of Patry's suggestions are simple enough: first, stop making new copyright laws until we know whether the current ones are working (we'll have to define what they're supposed to be doing first!); and second, make no new laws without a strong, impartial evidentiary basis.

Funnily enough, these two suggestions do mark Patry out as a copyright radical by modern standards. Copyright is supposed to be an unassailable doctrine of faith, and asking to see the evidence of supposed gigantic monetary and job losses due to piracy, or supposed gigantic contributions to the GDP and balance of trade as a result of the industries, makes you a loony heretic in the contemporary debate.

Source: boingboing.net/2011/12/09/patrys-how-to-fix-copyri.html
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Anonymous Coward, 9 Dec 2011 @ 9:07pm

Re:
Oops! forgot the point.

STOP MAKING COPYRIGHT LAWS BASED ON FANTASY AND GET SERIOUS ABOUT LOOKING AT DATA TO GUIDE POLICY INSTEAD OF HEARSAY FROM UNSCRUPULOUS PEOPLE WHO WOULD SAY AND DO ANYTHING TO GET WHAT THEY WANT.

That means no SOPA, no PIPA, no ACTA and certainly no "compromise" until there is serious data sugesting it is really needed, we don't want to defile the building blocks of our democracy for nothing it needs a real good reason to happen and copyright is not it.
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Anonymous Coward, 9 Dec 2011 @ 11:07pm

Re:
Purposeful obtuseness and weak ad hominem

troll rating 4/10
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JeroenW (profile), 9 Dec 2011 @ 11:51pm

At last, something positive about this insane law
So... your copyright laws got fucked up even further? But there's now a good chance of sending Justin Bieber to jail? Well, that's a small consolation I suppose.
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Anonymous Coward, 10 Dec 2011 @ 4:10am

Re: Re: Re: Re:
You need a slightly large brush, I think you missed SCOTUS.
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Anonymous Coward, 10 Dec 2011 @ 4:32am

Re: Re:
No, I admit only *if* he was prosecuted (incredibly doubtful), he would likely get a suspended sentence or a token fine.

Let's take this one step further. If this type of user generated content was known to be illegal, do you really think Beiber would have done it to start with?

See how it works?
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Michael, 10 Dec 2011 @ 4:53am

SPOA/Protect IP in five words:
Regulate everything and incriminate everyone.
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Anonymous Coward, 10 Dec 2011 @ 5:28am

Re: Re: Re: Re: Re:
SCROTUS the ubber biased in favor of copyrights dudes?

Yah right.
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Anonymous Coward, 10 Dec 2011 @ 5:32am

Re: Re: Re:
Exactly, and in the process you are taking away the opportunity for other Biebers(or better) to appear.

Why?

This is one thing that I really don't understand, why the frak someone that does all the work needs to pay a bum that does nothing?

If Bieber was buying gum instead of singing and selling those on the internet nobody would be able to stop him, why can't he just show a copy of the music and make money out of it to his hearts contents or use it to his benefit without having to pay a bum that did nothing but expects money?
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Cixelsid (profile), 10 Dec 2011 @ 8:07am

Jesus... I dread reading the comments section on Techdirt, it's almost always just a sea of anger and vitriol, on cracked.com the authors are at least occasionally congratulated or complimented (albeit amidst a sea of "lol fag" and "lol nazi fag").

Anyway, for what its worth, thanks, Mike, for doing the research and encouraging open debate. If it weren't for blogs like these a lot of these bills would pass without any real public knowledge at all.
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Anonymous Coward, 10 Dec 2011 @ 8:10am

Re: Re:
Exactly, he would be a convicted felon. He would have that hanging around his neck for the rest of his life never being able to get a decent job of cross borders. It's not just about jail time.
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Anonymous Coward, 10 Dec 2011 @ 8:38am

Beyond backwards
Defenders of these laws, including those in Congress who do so, seem to be suggesting that it's OK for them to be over-broad because they promise to only enforce them arbitrarily. How does that not just make them even worse?
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Anonymous Coward, 10 Dec 2011 @ 12:28pm

Re: Re: Re: Re:
...because the bum that did nothing actually created the music that The Beeb is using to make his name. It's one of those amazing thing, you know, actual creativity rather than just slavish copying.

As for "taking away their opportunity to appear", that isn't true. They could easily launch a lawsuit claiming fair use or "blessing from god" or whatever they think is their reason to be allowed to use other people's music, and they can argue in court until the cows come home (or a judge tells them to STFU). Nothing in SOPA stops people from taking legal action.
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Anonymous Coward, 10 Dec 2011 @ 12:37pm

Re:
I am trying to figure out what is actually being debated.

The only meaningful difference between current law and what is contained in the proposed bill is that public performaces (which have come to the fore with streaming) may be punished more harshly than is currently the case.

No new crime would be established since public performances can already can be prosecuted as a crime under the circumstances enumerated in the statutes.
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Lawrence D'Oliveiro, 10 Dec 2011 @ 10:06pm

Re: UP TO
Yeah, right. Why bother with specific laws against specific offences, at all? Why not just make everyone �UP TO� guilty of everything, so the Government can simply reserve the right to throw anyone in jail for any reason any time it wants to?

There�s a term for that. It�s called a �police state�. Is that where you want to live? Because it�s not where I want to live.
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Anonymous Coward, 11 Dec 2011 @ 5:51am

Re: Re: Re: Re: Re:
Created as in did a work in the past got paid and should not be paid again for the same thing for all eternity just like nobody else get that kind of privilege elsewhere.

Carpenters "create" a lot of things they don't get paid, if others use it or copy it do they?
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Anonymous Coward, 11 Dec 2011 @ 5:59am

Re: Re: Re: Re: Re:
Creativity?
There is no such a thing, we are all prisoners of our time.

As for SOPA you are correct there is nothing that stop others from taking legal action, there are just extreme barriers to pass first then you can take legal action, that is if you are the one trying to argue fair use.

Monopolies should not exist anymore we are in the 21th century and people keep trying to go back to mercantilism.
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Scott, 11 Dec 2011 @ 2:14pm

silver lining
Maybe, if we do get stuck with one or more of these pieces of legislation, it'll be worth it if it gets Bieber out of our lives.
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Anonymous Coward, 12 Dec 2011 @ 8:13am

blame it on josh
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Anonymous Coward, 12 Dec 2011 @ 8:14am

blame it on josh
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Anonymous Coward, 12 Dec 2011 @ 8:20am

Re: Re: Re: Re: Re: Re:
He didn't get paid in the past for Beiber's use today. Sorry, you are trying hard, but you just dig a deeper and deeper hole.

Someone buys a movie ticket today, it doesn't give you a right to pirate it tomorrow.
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dave, 12 Dec 2011 @ 9:52am

[Criminal law should not be open to such broad interpretations.]

...unless you're writing said law for the benefit of the lawyers who get to litigate (and bill!) based on that overly broad law.
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Paul Ramos, 20 Aug 2013 @ 10:21am

Sending Justin Bieber to jail? I don't think that will ever happen. Have you seen this? http://answers.yahoo.com/question/index?qid=20130820065206AAQleoN
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