Klobuchar bill would make it a felony to unlawfully stream copyrighted ‘performances’ online


A bill introduced last month by Sen. Amy Klobuchar could make it a felony criminal act to stream copyrighted “performances” online without permission. The bill — “To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes,” or S. 978 — assigns a maximum 5-year prison term for those convicted of streaming “10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works” and in cases where the “total retail value” of those performances to its owner exceeds $2,500 or the value of licensing of the works exceeds $5,000.

Klobuchar co-authored the bill with Delaware Democratic Sen. Chris Coons and Texas Republican Sen. John Cornyn, which would modify Chapter 5 of the U.S. copyright code. It passed on voice vote in the Senate Judiciary Committee this morning. The bill should be headed to the floor for a Senate vote next.

The group Demand Progress, in its action alert, states that under the bill (which it dubs the “Ten Strikes” bill) “you could go to jail for posting video of your friends singing karaoke.” That’s not exactly true, Klobuchar’s office states, noting that the measure targets those who willfully infringe copyright with the intention of making money. (Klobuchar was unavailable to comment at press time, but promises a response on Friday.)

“This isn’t about individuals or families streaming movies at home,” Klobuchar said in a statement emailed to the media. “It’s about criminals streaming thousands of dollars worth of stolen digital content and profiting from it.”

Still, Abigail Phillips, Senior Staff Attorney at the Electronic Frontier Foundation, says the language of the bill is “a little confusing,” although as an expert in copyright law, she wouldn’t weigh in on whether she thought the language might be considered so vague as to be unconstitutional.

“It’s been talked about as this streaming bill, to make streaming illegal, but what it does is affects the performance rights,” she told the Minnesota Independent. “It certainly is subject to interpretation. A stream may or may not constitute a public performance. It depends on whose streaming it’ it may depend  on where the content that’s being streamed is hosted, for instance.”

“It would depend on how you define who’s making the public performance. One interpretation is that the  performance is by the user who pushes ‘play.’ Another is that it’s the site that’s streaming the content. There are different ways to read that,” she continued, later adding, “Vague legislation is definitely a bad thing.”

The site TechDirt calls the measure “horrible” and notes the failure of the bill’s authors to define “performance.”

TechDirt’s Mike Masnick reports the problem with that lack of definition:

Everyone keeps insisting that this is targeted towards “streaming” websites, but is streaming a “performance”? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.

Phillips says she’s concerned about the increasing government enforcement for offenses that are typically considered civil offenses. “When you talk about throwing someone in jail, you’re talking something very serious.”

But she’s also concerned about the effect Klobuchar’s measure may have on creativity.

“The greater the potential penalty, the more of a chilling effect you’ll have on innovation and how people use the internet because people will be afraid of the risks,” she said.