Tuesday, July 5, 2011

Video Gamers Realizing Streaming Criminalization Bill Might Make A Lot Of Them Into Criminals

We've been covering just what an awful bill S.978 is. That's the anti-streaming, anti-embedding bill from Senators Amy Klobuchar, John Cornyn and Christopher Coons, which would allow law enforcement to seek jail time against people for streaming infringing works. As I've explained before, the clear intent of the bill is to go after sites that are streaming TV and movies. And the method to do so is to make a pretty small change to the criminal side of copyright law. Criminal copyright law was limited to reproduction and distribution among the various "rights" given to copyright holders. Civil law covers many more. This bill seeks to add "public performance" to the list of things that can be considered criminally infringing, potentially sentencing people to five years in jail.

The problem is that "public performance" is not at all well-defined. And while the bill does require that the effort be done as a commercial enterprise to be criminally liable, the fact that pretty much anyone can have AdSense or simple ads on their website makes nearly any website a commercial operation these days. And, yes, there have been cases where people have used simple ads, even if they make a few dollars total, as evidence of a "commercial" operation.

And that's a huge problem, because this bill, if it becomes law creates a massive liability for pretty much anyone who embeds or streams anything. The backers of the bill claim it's clearly not intended for the FBI to go bust down the door of someone singing along with their favorite song in a video... but it's entirely possible that the law could be used that way, and that's why people should be concerned about it. We've seen time and time again that federal prosecutors will toss in charges on questionable laws like these when they're going after people for something else and don't have enough evidence. The risk that this law will be abused is quite high.

Thankfully, more and more people are recognizing this. Dennis S. was a first of a bunch of you to note that the video gamers have jumped onto this cause in a big bad way, starting with a great overview of the problems with S.978 for video gamers who show footage from video games, and also points us to a YouTube video of a gamer explaining why people should be worried. That video doesn't quite have all the legal details straight (which is too bad), but it is generating attention, with over 400,000 plays start to finish (for a 17 minute video). Hopefully many of the gamers are making their voices heard among politicians.

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