Administration Can't Let Go: Wants To Bring Back Felony Streaming Provisions Of SOPA

from the not-this-again dept

We've been working our way through a paper released last week by the Commerce Department, concerning copyright reform, and will have a much more detailed post about it soon (there's a lot in there), but over at the Washington Post, they're highlighting the silly recommendation to bring back the plan to make unauthorized streaming a felony. This was a part of SOPA and was widely discussed. It wasn't technically in PIPA, but there was something of a "companion" bill from Senator Amy Klobuchar that effectively had the same thing. This got a fair amount of attention when Justin Bieber was asked about the law, and said that Klobuchar should be locked up.

It's no surprise that this is coming back. It's one of the points that's been raised a few times since the death of SOPA. As we explained back during the original debate, there are different "rights" associated with copyright law, including distribution, reproduction, etc. For very good reasons, when the government put in sections on what could be considered criminal infringement, they left the "public performance" right off of the list of possible felonies. And that's because it's fairly absurd to consider a felonious public performance of a work. But, because of the rise of streaming sites, and the continued myopia of the entertainment industry, they're afraid that sites that embed works from elsewhere might not be seen as technically violating the distribution or reproduction rights (for good reason), and thus they want to elevate public performance as a felony to try to let the feds go after such sites.

This is misguided on a variety of levels. First of all, it's an attack on secondary liability. A site that is posting embeds of content hosted elsewhere shouldn't be held criminally liable for that content -- especially when that content may change over time and they have no direct control over it. If the original content is infringing, go after whoever uploaded/hosted the original content. Not the sites that merely have an embed. Furthermore, because the lines between reproducing, distributing and public performance can get blurry at times, it's very likely that any increased criminality for public performance will be stretched and abused to cover things that people think should be perfectly legal. As Harvard law professor Jonathan Zittrain explained in detail last year, the streaming provisions could clearly apply to something as simple as posting videos of yourself performing a cover of a popular song you don't have a license to.

Part of the issue is that current copyright law defines a public performance as follows (from 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.

Note just how broad that is. If you "transmit or otherwise communicate a performance or display of the work" for the purpose of having it performed or displayed at a place open to the public, you may be involved in a public performance. It's not hard to see how that might be used to include people posting videos on YouTube.

And, really, this whole idea is misguided. It comes from the entertainment industry's ridiculous belief that if they just keep playing Whac-a-mole with whomever they've decided is the "enemy" this week, it will eventually bring back old business models. Sites that embed streams from elsewhere aren't the enemy. Trying their operators into felons is fraught with all sorts of dangerous unintended consequences. You'd think that, given what happened with SOPA that administration officials would shy away from pushing more such backwards-focused plans... but they just can't resist.

Filed Under: copyright, felony, public performance, sopa, streaming

DJs' 'Dihydrogen Monoxide' April Fool's Prank Results In Suspension And Possible Felony Charges

from the is-actually-Dolan-water dept

April Fool's Day. Either you love it or you hate it. There's not much middle ground. As a writer on The Internet, April Fool's Day is a 24-hour deathtrap composed of plausible stories that will set you on fire the moment you press the Publish button. It turns even the most cheerful of writers into a deeply cynical curmudgeon, one who approaches each possible scoop with more suspicion than the heavily-bearded guy down the street who's building a bunker under his garage and frequently answers the door wearing nothing but a shotgun. (Much of this reverts back to normal following the "holiday," but each year adds another layer of resentful suspicion. In fact, if you cut open a writer, you can simply count the rings to determine how many years they've been in the business.)

For many people, though, April Fool's Day is a 24-hour period filled with lighthearted pranks and sub-Onion quasi-satire. They love cheerful shenanigans and they love being fooled. Except when they don't. Then it's suddenly "gone too far" and concerned foolees start pressing for "something to be done about it." This is one of those stories, the kind where you can't fool all of the people all of the time, but you can temporarily fool enough of them that someone gets seriously pissed off.

Florida country radio morning-show hosts Val St. John and Scott Fish are currently serving indefinite suspensions and possibly worse over a successful April Fools' Day prank. They told their listeners that "dihydrogen monoxide" was coming out of the taps throughout the Fort Myers area.

If you're not familiar with the term "dihydrogen monoxide," you'll be thrilled to know that the compound is damn near everywhere. Not only that, but its ubiquity has prompted many a petition to be signed fervently in favor of banning the dangerous-sounding substance completely. No one's really sure what makes it so dangerous, but anything containing two parts hydrogen and one part oxygen can't be completely safe.

Of course, anyone who's paid attention over the last couple of decades (at least) knows that dihydrogen monoxide is water. What's surprising is that a couple of pranking DJs could find enough people unaware of this fact to a.) pull off the prank and b.) possibly face felony charges. Wait... what?

[A]pparently, the station, the water works, and perhaps the authorities are still trying to figure out if the two hosts could face felony charges for, again, reporting that the scientific name of water was coming out of the pipes. "My understanding is it is a felony to call in a false water quality issue," Diane Holm, a public information officer for Lee County, told WTSP, while Renda stood firm about his deejays: "They will have to deal with the circumstances."

It seems unlikely the DJ duo will actually face felony charges, but they are currently suspended after being yanked off the air in the middle of their morning show. Apparently, enough people expressed their concern about dihydrogen monoxide leakage that the local water utility was forced to issue a statement.

These reactions to an April Fool's prank that occurred on a day when pranks are to be expected seem rather overblown. The DJs are suspended indefinitely for technically telling the truth and the station has indicated the pair are facing additional punishment. Sure, nobody wants to feel like a fool, but that is the totality of April 1st. If this many people can't take being taken for a ride on the foolingest day of the year, then it's a clear sign that the national sense of humor is in critical condition. (We've already eulogized the national sense of proportion and scattered its ashes across a variety of moral panics and Terms of Service outrages.) To put it in more familiar terms, "If you can't laugh at yourself, the terrorists win."

[It appears the terrorists have won. (Again.) A poll on the radio station's website (warning: ads frickin' everywhere even with Adblock) shows that 78% of the respondents believe the DJs should return to the airwaves "never." (Poll is no longer live, but an "indefinite" suspension could technically lead to returning "never.")]

Filed Under: april fools, dihydrogen monoxide, felony, florida, prank, radio djs, water

Arizona Politician Parodied By Fake Twitter Accounts Pushes Bill To Make Online Impersonation A Felony

from the be-careful-who-you-parody dept

It's become quite common these days to see people set up "fake" social network profiles for certain people as a way to parody them. There have been a few lawsuits here and there over such fake profiles, but should they be a crime? As noted by the Citizen Media Law Project, Arizona State Representative Michelle Ugenti has proposed a bill that would make it a class 5 felony to impersonate someone online "with the intent to harm, defraud, intimidate or threaten." That last part, obviously, limits the purely parodical accounts, but the definitions of those words could be quite broad, and the risk of an overly broad interpretation is quite real. Considering that class 5 felonies in Arizona come with a "presumptive sentence of a year and a half imprisonment," you would hope that the definitions here would be a lot clearer.

Of course, as the CMLP article notes, you have to wonder if Ugenti proposed this bill for personal reasons -- seeing as there are some parody twitter accounts for her, specifically @RubbingUGently and @RepMUgenti. It seems that Rep. Ugenti got some attention for snapping at a bunch of students, who would be charged $2,000 more (regardless of their financial aid setup) to attend university in the state, "welcome to life," and for making a hacky masturbation joke during committee hearings. If you want, the quip is at 2:14:30, and involves another committee member asking how long the hearings are going to run, and saying that he has "a hot date" that he wants to get to, leading her to say: "No you don't. Stop it. Your right hand doesn't count." All clearly overheard on microphone.

Would those parody accounts be subject to this new law? CMLP suggests they would likely be protected under the First Amendment, but of course, it could involve a long and convoluted trial to prove that point. Just the threat of jail time could create serious chilling effects on parody speech. As for Rep. Ugenti being concerned about fake Twitter and Facebook profiles, perhaps she should take her own advice: "welcome to life."

Filed Under: arizona, felony, impersonation, michelle ugenti, parody, social media

Wisconsin Warns: If You Tweet Photos Of Your Completed Ballot, You Can Go To Jail

from the civic-pride-and-handcuffs dept

It's election day, of course, and with that comes some amount of civic pride among a number of voters. That's a good thing, for the most part, and in this era of social media and people sharing photos and videos about their lives, plenty of people are sharing imagery of their own ballot. Perfectly reasonable, right? Well, yes, except when that runs into laws designed to keep your ballots secret. There are, of course, good intentions behind such laws. But mixed in with all those local laws concerning camera usage inside a polling place are some that could cause trouble for people doing something quite ordinary. For example, it appears that people in Wisconsin who decide to Instagram/Tweet/Facebook an image of their ballots, have committed a class I felony, election fraud. And this doesn't appear to just be a law that the state is going to ignore either. It's been issuing warnings to people that they could face felony charges if they do post those photos. Undoubtedly, many will be unaware that they're committing election fraud when they thought they were just showing civic pride. One hopes that officials in Wisconsin, and other states, take the context into account before moving forward with any legal responses.

Filed Under: civic pride, elections, felony, photographs, sharing, voting, wisconsin

DOJ Two Step: It Should Be A Criminal Offense To Lie About Your Age On Facebook... But We Probably Won't Go After You For It

from the well,-that's-comforting dept

While we obviously spent a lot of time on the SOPA hearings this week, there was another Judiciary Committee meeting of interest this week concerning cybersecurity. Part of the discussion focused on the Computer Fraud and Abuse Act (CFAA), which is being regularly abused by law enforcement to bring all sorts of questionable charges against people. This, by the way, is one of the reasons why we fear the felony provisions in SOPA, because we know how the DOJ abuses similar laws.

In this case, one of the key issues is that law enforcement has used the law in the past to say that any violation of a terms of service agreement -- such as lying about your age when signing up for a dating site -- could be a criminal offense under the CFAA. That, of course, is insane. Even more ridiculous, however, is that the DOJ's official testimony at the hearing was about how important it was to keep this part of the law in place, allowing it to add questionable charges.

The law must allow "prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider," -- Richard Downing, Justice Department's deputy computer crime chief

But then, Downing also seems to be saying the exact opposite:

“The DoJ is in no way interested in bringing cases against people who lie about their age on dating sites, or anything of the sort. We don’t have the time or resources to do that,”

So.... the law must allow such prosecutions, but it has no interest in bringing such prosecutions. That makes perfect sense. If you're a DOJ official, I guess. For the rest of us... huh?

Filed Under: cfaa, doj, felony, hacking, lying, orin kerr, richard downing, terms of service

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?

Filed Under: amy klobuchar, felony, justin bieber, s.978, sopa, streaming

Congress Debating If Putting A Fake Name On Facebook Should Be A Felony

from the how-to-turn-the-whole-world-into-felons dept

On Wednesday, George Washington Law professor and former federal prosecutor Orin Kerr authored an op-ed in The Wall Street Journal, posing the question "Should faking a name on Facebook be a felony?" He was, of course, talking about the infamous Computer Fraud and Abuse Act (CFAA), which Congress is preparing to update. The CFAA, as has been noted here many times, is a federal law passed in the '80s and initially designed to combat malicious computer hacking, but which has become bloated, stretched and over-applied in the years since.

At the root of many of the arguably overreaching applications of the CFAA is the prohibition on conduct which "exceeds authorized access" to a computer system. According to Kerr:

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like.

And Professor Kerr should know, he was the attorney who defended Lori Drew when she was charged with a felony for making a fake MySpace profile. The Justice Department's position that a violation of a terms of service constitutes a federal crime basically makes the Federal government the enforcer of private contracts. Got an employee spending too much time on Facebook? Turn them in to the Feds. Someone posting comments you just don't like on your blog? Call the DOJ. Or threaten to. The chilling effect alone should be enough to keep your users in line.

Would you believe that some politicians are even thinking of making the bill even worse?

Professor Kerr's primary concern expressed in the op-ed was that the CFAA was going to be amended to make any violation of the CFAA a felony. Hopefully, this won't pan out. The original Administration proposal (pdf) did increase the baseline punishment for any violation of the CFAA (including exceeding authorized access) from a misdemeanor level offense (less than one year) to a felony. But, thankfully, the Judiciary Committee didn't take the Administration's suggestion. Lets hope it stays that way as this bill makes its epic journey through the Washington legislative sausage maker.

There is yet a glimmer of rational-thought hope. Senators Grassley and Franken have introduced an amendment (pdf) which would modify the definition of "exceeds authorized access" to exclude violations of a TOS, if that's the only basis for the charge of violating the CFAA, effectively improving the CFAA instead of making it worse. Fingers crossed that the amendment makes it in.

Filed Under: cfaa, felony, hacking, orin kerr, terms of service

Phoenix DA Decides Not To File Charges Against Woman Accused Of Groping TSA Agent

from the is-that-good-or-bad? dept

Well, well. There was a lot of talk earlier this week about the woman, Yukari Miyamae, who was arrested for allegedly groping a TSA agent at a security checkpoint. The police reports claimed she had grabbed the agent's breast. In some press reports, Miyamae had claimed she did not actually grope anyone. And now... the district attorney's office in Phoenix has decided not to press charges, claiming that what she did "did not rise to the level of a felony offense under state law." She may still be charged with a misdemeanor, however, though that would be a city issue. At this point, it's not entirely clear what happened. Either the original claims by the police were simply not accurate and she didn't do what they claimed (as she asserts). Or the DA may have realized that going forward with such a prosecution would be problematic for a variety of reasons, not the least of which is the equivalence issue that plenty of people have raised, about whether or not the TSA gropings themselves are a form of sexual molestation.

Filed Under: felony, groping, tsa, yukari miyamae

Tons Of YouTube Users Putting Up Videos In Protest To S.978

from the good-for-them dept

We've been talking a lot about Senate bill S.978, from Senators Amy Klobuchar, John Cornyn and Christopher Coons, which would adjust the criminal copyright statutes to make some forms of linking/embedding/streaming a felony for which people could face 5 years in jail. As we've noted from the beginning, the really scary part is the ignorance of people supporting this bill, in ignoring how it could make tons of people liable. They insist that there's no problem here because (a) the bill requires the streams/embeds to be for commercial purposes and (b) because the "value" has to be greater than $2,500. What they ignore (despite plenty of people pointing it out) is that it's not hard for people to show that something is done for commercial purposes. If you have ads on your site, even if they make you pennies, you're "making money." And the "value" of the work can easily be estimated or exaggerated at over $2,500. Again, no one is claiming that the feds are suddenly going to go after your average YouTube embedder, but the problem with this change to the law is that it could be used that way. Federal prosecutors have made use of ambiguous or questionable laws like this in the past, such as attempts to misuse the CFAA bill, which is designed for those who break into computer systems, against people like Lori Drew who was mean to a teenager on MySpace.

We've noted that the bill is getting more attention of late, and it appears that the YouTube community has awakened to the problems with it. If you now do a YouTube search on s978, there are a rapidly growing number of results, with plenty of people speaking out against the bill, in part due to claims and some videos from YouTubers related to worries from video gamers.

Tragically, going through a bunch of the videos... nearly all of them gets the facts wrong in some manner (sometimes getting nearly all the details wrong). I worry about that, because it allows politicians to brush aside the very real concerns about the unintended consequences of the bill. Also, some of the incorrect statements seem to lead to people saying that the bill won't pass because "something that stupid can't pass." And, indeed, no bill is going to pass that will force all these people to take their videos down or to fine them for old videos as some have suggested. The risk is in how the bill could be used by federal prosecutors to go after people embedding certain videos, and then using the letter of the law (though clearly not the spirit) to go after people.

It's good to see so many people speaking out, but it would be better if they spoke factually about the bill, rather than running with some of the wilder assumptions that people seem to be making.

Filed Under: amy klobuchar, christopher coons, copyright, felony, john cornyn, protests, s.978, streaming, video gamers

Senators Unconcerned About Massive Unintended Consequences Of Criminalizing People For Embedding YouTube Videos

from the shame-on-them dept

This is really no surprise, but the same Senate Judiciary Committee that unanimously approved the PROTECT IP Act, despite worries from internet experts and major media about how it would break the internet, has now also unanimously approved the anti-internet streaming bill that makes it a felony to stream certain videos online -- potentially putting people in jail for embedding YouTube videos or just putting up YouTube lip synching videos.

What's really troubling here is that the media and plenty of concerned citizens have directly raised the issues about the unintended consequences of this law. And while Senators Amy Klobuchar, John Cornyn and Christopher Coons continue to insist that (of course) the law is not intended to be used against such people, they have made no move to fix the bill. Even supporters of this bill, who insisted that we were wrong about what the bill allowed, eventually conceded that our argument was accurate and that this bill could be used to put people in jail for embedding a YouTube video or doing a lip synch video.

And that's a huge, huge problem. Of course, no one thinks the bill is for that purpose directly or that it's going to be widely used for such purposes. However, the bill, as written, clearly allows law enforcement to charge people with a felony for that, assuming it meets a few other conditions. But those conditions are pretty minimal (ads on your page? you're in trouble...). The risk here of abuse is a serious risk, and it's incredibly troubling that Klobuchar, Cornyn and Coons failed to change or adapt the bill, and worse that the rest of the Senate Judiciary Committee allowed the bill to move forward in such a broken state. They were clearly made aware of problems with the bill, but directly chose not to make any changes. How do you explain that other than incompetence or corruption?

Filed Under: amy klobuchar, christopher coons, copyright, felony, john cornyn, performance, streaming