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

Justin Bieber Sends Cease & Desist To FreeBieber Campaign

from the bieber-fever dept

Apparently Justin Bieber has no interest in being kept out of jail. You may recall that the Fight for the Future folks recently started a satirical campaign against the felony streaming bill (S.978 in the Senate, and a part of the SOPA bill in the House) by jokingly launching a campaign to "free Justin Bieber", noting that the bill, as written, could be interpreted to mean that Justin Bieber could have been guilty of committing a felony with his early videos that he put up on YouTube, which helped to really create Justin Bieber. Those videos meet the standards set in the law for criminal copyright infringement, which drives home just how ridiculous the bill is.

Apparently, Justin Bieber (or, at least, his lawyers) apparently would prefer not to be used to defend against draconian, overreaching copyright legislation. They sent Fight for the Future a cease and desist letter, claiming that such a use infringes on a variety of his rights, including (of course) publicity rights and his privacy rights.

Of course, as the EFF writes in its response (embedded below), it appears that Bieber's lawyers are clearly stretching the interpretation of various laws... likely hoping that by sending the legal nastygram, it would cause the FreeBieber team to stop. But that's not what's happening. They're standing behind the use of Bieber and the entire effort:

With respect to the privacy claims, we cannot fathom how this political campaign in any way intrudes on any privacy right your extremely public client might assert. As for the purported right of publicity violations, state laws have long recognized that a celebrity's interest in his or her image must be balanced against the public interest in free speech.

Filed Under: amy klobuchar, cease and desist, copyright, justin bieber, privacy rights, publicity rights, s.978, streaming, youtube

Free Justin Bieber: Do We Really Want Congress To Make Bieber A Felon?

from the say-no-to-s.978 dept

We've talked a few times about s.978, the bill from Senator Amy Klobuchar, that attempts to make streaming videos potential felonies. The bill is poorly drafted (at best). It basically just adds "public performance" as a possible felony under the law. That seems simple, but it's way too broad, in an era when all sorts of things can be a public performance. Defenders of s.978 again insist that it's not that bad because the law would only apply to willful "commercial" infringers -- but as we've seen repeatedly, the feds seem to interpret that extremely broadly.

Thus, the bill could, in fact, be used against people streaming videos via YouTube for their own benefit. People like... Justin Bieber. In fact, a new advocacy group has kicked off a campaign against S.978 by asking people to help free Justin Bieber. As they point out, Bieber became famous by posting videos of himself singing famous songs on YouTube as a kid. As the campaign notes, this video was a big part of advancing Bieber's massively successful music career -- so you could easily make the case that it was clearly commercial infringement. It was "willful" and he clearly intended to infringe on the Chris Brown song. Clearly it was for "personal gain." As the law notes, you don't have to make money directly from the video for it to be criminal infringement. The law "does not require that a defendant actually realize a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of "financial gain or benefit." Check. It also has to involve 10 or more "performances" within 180 days. That video has over 35 million views. Check. And did it cause more than $2,500 in losses to the rights holder? Given how the RIAA defines losses, hell yes. Think of all that unlicensed use. If the label licensed the song for 35 million plays, I'm sure it would have cost a lot more than $2,500.

Game, set, match. Under Klobuchar's streaming felony bill, Justin Bieber likely committed a felony.

Now, I realize that many people don't much like Bieber or his music, but does he deserve to go to jail? Now, obviously, defenders of s.978 will claim that they don't intend to go after the likes of Justin Bieber. But just the fact that they could suggests a massively problematic bill. And, realistically, the problem isn't the Biebers of the world, but the next kids who upload a video of themselves lip synching to some song. This is a massively problematic bill, and hopefully you'll check out the Free Bieber site to help let Congress know that this bill is bad news.

Filed Under: amy klobuchar, copyright, justin bieber, s.978, streaming, youtube

Judge Dismisses Lawsuit Against UCLA For Streaming Video, But Mostly Avoids The Deeper Copyright Question

from the another-day-for-that dept

In early 2010 we wrote about an ongoing fight between UCLA and the Association for Information Media and Equipment (AIME) concerning the ability to put content from legally purchased DVDs online for students to watch. UCLA, fearing a lawsuit, blocked all such video sharing. However, after that got a bunch of attention, it decided to stand its ground and put the videos back up. While we expected an immediate lawsuit, apparently AIME was just waiting... and waiting... and finally filed the lawsuit against the University. There were a bunch of interesting legal questions raised... and it seems that the judge in the case had quite a few as well. The case has now been dismissed.

Of course, the reasons are more technical in nature. The court barely focuses on the copyright questions, but mainly deals with whether or not AIME even has standing to sue and whether or not UCLA is protected by sovereign immunity from such lawsuits. We highlighted that these were the two main issues a few months back, and it appears that the court agreed. Of course, without a completely clear ruling on the copyright issues, it's not clear how useful this will really be in other circumstances... The ruling in this case may be unique for a few reasons. First, the fact that it's a state university allows it to argue sovereign immunity. We've always been a bit skeptical about sovereign immunity claims in the first place -- since it seems somewhat ridiculous that government entities can simply ignore the laws everyone else has to follow. Even if we're happy that UCLA won, the reasons aren't great. As for "standing," well, that's a mistake on the part of AIME. One assumes that if an actual copyright holder sued then the case would get more interesting. So I wouldn't read too much into this ruling at this stage, but there may be a future version of this or a similar case that would be a lot more important.

Filed Under: copyright, education, fair use, sovereign immunity, standing, streaming
Companies: aime, ucla

No, The Supreme Court Did Not Legalize Downloading

from the wtf? dept

First things first: I've appeared on The Alyona Show on RTTV a few times in the past, and have always enjoyed it. I don't know much about Russia Today, the operation behind RTTV, though some have argued that it's a propaganda arm for the Russian government. My general position on these things is that if people want to interview me about the subjects that I'm interested in, I'm happy to talk to anyone. I've done interviews for NPR and the CBC as well, and I've given a talk for execs at the BBC, all of which are also government supported media.

However, to be a credible news source... you have to at least be able to get the basics right. On Monday of this week, we wrote about the Supreme Court's decision to let stand a Second Circuit appeals court ruling, saying that a download did not require extra royalties for also being a public performance. It's basically a licensing dispute over what licenses need to be paid if you're offering downloadable music. Interesting, but not a huge deal.

So I was a bit shocked to see a headline declare that the Supreme Court legalizes downloading music, because that's simply not true. I clicked through... and it's from RTTV, who apparently understood this story so little that almost nothing in the headline or opening sentence is accurate. On the assumption that perhaps they'll change or pull this down, here's a screenshot: First up, the Supreme Court didn't do anything other than refuse to hear the appeal of ASCAP, allowing the Second Circuit case to stand. So it didn't legalize anything. Nothing in the Supreme Court's decision not to hear the appeal indicates a change to any law, let alone something as crazy as "legalizing downloading music." Second, the opening sentence is also completely bogus. Downloading music is already an infringement of federal copyright law. Nothing in this case would change that one way or the other. All it concerned was whether or not services that offer downloads have to pay a separate "performance" license to ASCAP for the downloads. Nothing in this is about legalizing (or illegalizing) downloads. Services already pay licensing rights to distribute a copy of a file. The question is whether or not they had to pay even more, if downloading also constituted a "public performance," which is covered by a different right under copyright law.

No matter what your position is on copyright law, or this particular case, making totally ridiculous claims, like the Supreme Court legalized downloads, is flat out ridiculous, and suggests not only did someone not understand the case at hand, but didn't even bother to read the most basic information about the case.

Filed Under: copyright, downloads, facts, journalism, streaming
Companies: russia today

Starz, Netflix And How Industry Jealousies Strangle A Golden Goose

from the we'll-see dept

In a somewhat surprising move, Starz has decided to not renew its contract with Netflix. Many other TV channels and movie studios are sure to follow as their current contracts end. Even though Netflix is somewhat braced for this, Starz was one of the few providers willing to supply newer titles, thanks to its deals with Disney and Sony Pictures. Not only that, but Netflix's licensing deal with Starz was somewhat of a coup with its bargain-basement price tag ($30 million) which helped it get its streaming service off the ground. While this loss will probably adversely affect Netflix in the short term, in the long term it may have more of an effect on Starz.

According to Starz CEO Chris Albrecht:

Starz Entertainment has ended contract renewal negotiations with Netflix. When the agreement expires on February 28, 2012, Starz will cease to distribute its content on the Netflix streaming platform. This decision is a result of our strategy to protect the premium nature of our brand by preserving the appropriate pricing and packaging of our exclusive and highly valuable content. With our current studio rights and growing original programming presence, the network is in an excellent position to evaluate new opportunities and expand its overall business.

In between all the jargon, there's a message: Netflix isn't willing to pay us what we think our content is worth. Unfortunately for Starz, it may soon find out that Netflix was actually paying what the content was worth. In Starz' opinion, it can go elsewhere and make more. More accurately, Starz just has to go somewhere else.

Despite the fact that Netflix has offered $300 million for continued access to Starz content, it wasn't enough for those swimming upstream of the cable channel. In all likelihood, $300 million would have been plenty except for the uncomfortable fact that Netflix is beating cable television at its own game. Pressure from Liberty Media (which owns Starz and invests in Time Warner Cable) to create a new, higher priced tier for Starz very likely killed the deal:

[R]epresentatives for the cable network owned by John Malone's Liberty Media were insistent that Netflix create a new "tier" for subscribers who wanted its movies at a higher price than the $7.99 it currently charges for online video. That would have put Netflix more in line with the pricing of cable and satellite companies, a step the video company apparently wasn't willing to take.

"Starz could have taken a check from Netflix, but there would have been pushback from cable and satellite operators and its studio partners," said analyst Tony Wible of Janney Montgomery Scott.

Unfortunately for Netflix and its customers, the content providers seem to think that they can reset the clock back to a "simpler" time by withholding new releases in order to drum up plastic disc sales or, in the case of Liberty Media, turning its content into a "premium" in an effort to shore up its flagging subscriber base.

This all points to an incredible level of arrogance on the part of the content providers. First off, they assume the public cares about release dates, exclusive licensing deals and PPV windows. I can assure you that the public could not give less of a shit about when, where and how the content providers release their movies and TV shows. Secondly, they do everything in their power to turn back the clock to captive audiences, tied to a single television and handcuffed to a single cable box.

The public just wants access to the content in its most convenient (to them) form. The game has changed (thanks to Netflix and others) and no one feels compelled to deal with one service only for their entertainment. Liberty Media may think it can set the price for its content to whatever dollar amount is best for it, but consumers have given no indication that they like sudden price increases. In fact, consumers are finding cable to be less and less essential thanks to services like Netflix, but rather than learn from the past, content providers seem to think that new media has to play by old media's rules and consquently, swiftly ruin everything they touch.

These members of the entertainment industry also seem to forget the file-sharing elephant in the room. (Perhaps it's because Industry-Vision™ corrective lenses render this animal as a "scapegoat.") If this short-sighted pursuit of DVD sales and PPV income continues, they're going to find customers fleeing to "content providers" who can give them what they want when they want it, all at a price the entertainment industry can't afford. And instead of being able to collect "too little," they'll be collecting nothing at all.

Filed Under: dowloads, movies, streaming
Companies: liberty media, netflix, starz

That Didn't Take Long: Spotify Sued For Patent Infringement Just Weeks After Entering US Market

from the welcome-to-america! dept

Hello Spotify. Welcome to America, where if you do anything even remotely innovative, you get sued for patent infringement. Indeed, just a couple weeks after entering the US market (finally), Spotify is being sued by PacketVideo for patent infringement. I knew the name PacketVideo sounded familiar... and then I remembered. A decade ago it was considered one of the hottest startups on the planet for trying to figure out ways to do streaming video on mobile phones (something I noted at the time I thought was not at all compelling -- which I'll admit I was totally wrong on, but that was before the invention of large screened smartphones that we have today). Of course, PacketVideo failed to live up to the early lofty expectations, and last we heard of it, the company was being acquired by DoCoMo for what appears to be a lot less money than it raised over the years.

Now, you might claim that perhaps PacketVideo has a legitimate patent claim here. After all, the company has been around for well over a decade and was an early pioneer in streaming efforts. But... the details suggest not so much. The actual patent in question, 5,636,276, is for a "Device for the distribution of music information in digital form." Sound broad? Of course, as the patent attorneys in the audience will tell you, it's not the title of the patent that matters, but the claims. So go read through the claims and try not to gag. What's described is the very generic idea of streaming music. Here's the key claim:

a central memory device which is connected to a communications network and has a databank of digitized music information and, a terminal which is connected to the central memory device via the communications network, the central memory device being equipped with a retrieval module and the said modules having the capability to interact via the communications network in order to order and transmit selectively chosen music information, wherein the selectively chosen music information is organized with a defined format for transmission in a digital music information object, the format including a core and a number of additional layers, the core including at least one object identification code, object structure information, a consumer code and an encryption table and the one or more additional layers including the actual music information, wherein the central memory device has an encryption module for encryption of the music information object before transmission using the encryption table, and wherein the terminal has a decryption module for decryption of the music information object before its reproduction using the encryption table, an interpretation module for interpretation and reproduction conditioning of the music information object as well as an authorization device having identification information for identification of the terminal and of the consumer which is retrievable by the interpretation module and by the decryption module for authorization checking.

Now here's the thing. When this patent was filed in 1995, this was not a unique idea. You could have asked any semi-competent engineer how would you build a digital music streaming service, and you would have received a similar general explanation. The problem was never in understanding the various pieces you need to put together. The difficulty at the time was getting enough bandwidth to do this reasonably... and getting any sort of licensing in an era before most label execs even knew what the internet was.

Oh, and let's get to the important part: PacketVideo had nothing to do with this patent. The company just bought it a few years back. There's nothing in this patent that was some amazing breakthrough or key innovation. Spotify is an amazing product, not because of this patent, but because of how it actually executed and built a working product.

Once again, we see patents being used as a tool to shakedown companies who were actually innovative in how they executed, with a ridiculously broad patent that contributed zippo to the actual state of the art.

Filed Under: music, patents, streaming
Companies: packetvideo, spotify