Posting Copyrighted Music to YouTube Might Soon Earn You Jail Time
You might want to think twice before posting that video of your cat "dancing" to a Lady Gaga song. Not just because nobody wants to see it, but because it might earn you a few years in the Federal pen.
Yesterday the Senate Judiciary Committee recommended a bill for the Senate that would make it a felony to "make a public performance by electronic means" of a copyrighted work, i.e. illegal streaming of copyrighted material. This offense would carry the same penalty of illegal reproduction and distribution of copyrighted works: up to five years in prison, a fine, or both.
The bill has the support of just about every copyright-holding organization, including the RIAA, the MPAA, Disney, NBC Universal, and others. On the introduction of the bill to the Senate in May, the RIAA commented: "As the music industry continues its transition from selling CDs to providing fans convenient access to a breadth of legal music online, laws that provide effective enforcement against new and developing forms of content theft are essential to the health of our business." Basically, the companies don't want to be left behind when technology progresses more quickly than laws that can make various infringements illegal.
It's not yet clear whether ordinary bloggers and Youtubers have anything to fear from the bill. The Ninth Circuit has held that merely providing HTML instructions that direct a browser to another website (say, embedding a video) is not making a copy of the work, but there's been no indication whether or not it may be a "public performance," which would be made a felony --¬†it's already a misdemeanor --¬†under the bill.
The problem with the bill, common with copyright statutes, is the vagueness as to what a "public performance by electronic means" exactly entails. Is it embedding a video? Is it triggered when a video is posted, or merely played? To be prosecuted under the bill, there must be 10 public performances within 180 days. Does this mean 10 posted videos, or 10 views?
In order to assuage these fears, the bill's sponsor, Sen. Amy Klobuchar, D-Minn., has commented that the bill will not mean the Department of Justice will prosecute innocent bloggers, but that it is intended to target the worst of the bad actors. However, the Department of Justice (which, as Klobuchar fails to note, is independent of Congress) can freely decide to change its policy at any time, and often does so under different presidential administrations.
Unfortunately, the proposed bill is so vague that, despite its assurances otherwise, the federal government will have the power to go after and imprison bloggers who embed videos, or innocent infringers posting streaming videos with any amount of infringing content. That is, until the Supreme Court decides what exactly counts as "public performance by electronic means." And in case you forgot, this is a body of people whose Chief Justice, and third-youngest member famously asked, "What's the difference between e-mail and a pager?"