by Mike Masnick, Techdirt
We recently wrote about the horrible bill introduced by Senators Amy Klobuchar, John Cornyn and Christopher Coons to extend criminal copyright law to include "public performances" as being potentially criminal. As we explained at the time, current copyright law is split into civil and criminal parts, with most violations being civil in nature. But this new bill -- unfortunately recommended by White House Copyright Czar Victoria Espinel -- would extend the criminal provisions to include "public performances." Supporters claim that the lack of a "public performances" provision in criminal copyright law was a "loophole" or an oversight. But that's incorrect. There are good reasons why public performances aren't covered by criminal copyright law, in that it rarely makes sense to consider them criminal issues.
Yet, because the entertainment industry is freaking out about sites that embed and stream infringing content, and want law enforcement to put people in jail over it, rather than filing civil lawsuits, this move was made to extend criminal copyright law. However, the idea and the suggestion were done with very little thought towards what this really means in an internet age, when almost everything you do online could be considered "a public performance." We already pointed to one possibility: that people embedding YouTube videos could face five years in jail. Now, others are pointing out that it could also put kids who lip sync to popular songs, and post the resulting videos on YouTube, in jail as well.
Now, of course, all of the supporters of this bill insist that's just crazy talk. After all, this bill is not intended for that purpose at all. It's solely intended to go after "criminals" who are doing these things for profit:
The new law will not target ?individuals or families streaming movies at home,? said a statement from Klobuchar. She said the bill will instead target ?criminals that are intentionally streaming thousands of dollars in stolen digital content and profiting from it.?That's nice to say, and I'm sure she means it. But this shows a massive misunderstanding of how the internet works. After all, plenty of people doing these kinds of videos may put some ads around them, and plenty of them get to be really, really big. And, as we've seen with ICE's domain seizures, they consider any use of advertising, even if it makes a pittance, to be "profiting from infringement." These days, everything has ads on it, and it's easy for anyone to sign up for a simple ad account and make a few bucks here and there for your activities online.
And that's the problem. While I'm sure no one supporting this bill thinks it'll be used in this manner, and I'm sure law enforcement has no interest or intention to go after lip-syncing teens, we've all seen how laws like this get stretched and used to bring people up on charges, when no other law applies. Remember the Lori Drew case? That involved the feds stretching a "computer hacking" law to claim she "hacked" MySpace by creating a fake account on the service, allowing them to charge her with a felony. Similarly, we've seen officials charge people with wiretapping for merely wearing a helmet cam while riding a motorcycle.
The point is that when law enforcement wants to charge someone with a felony where there's no obvious match, they'll often stretch laws like this to find something they can use. And this extension of criminal copyright law to include a "public performance" seems ripe for misuse. If Klobuchar and the others are serious about this, they should go back to the drawing board and rewrite the bill so it's not nearly so broad and won't open up so many potential unintended consequences.
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