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Federal anti-streaming bill has broad implications

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Indiana Lawyer Focus

Indianapolis attorney Jonathan Polak could be considered a copyright criminal under a new law being drafted in Congress. Many might be.

Putting a video on YouTube and embedding that video onto another site could be all it takes to commit a felony under a statutory amendment before the U.S. Senate.

The legislation comes at a time when widespread copyright law reforms and the enforcement of intellectual property protections are on the table, and it ties in with a broader issue of how laws are written and interpreted in today’s Web-savvy society. In the digitally driven 21st century, statutes and caselaw have trouble keeping up with the ever-expanding online universe where IP can change as quickly as someone has an idea. That puts courts and lawmakers at a disadvantage as they must constantly reevaluate how criminal code and long-established statutes apply to issues that often didn’t exist when the laws were written.
 

Jonathan Polak Polak

Copyright laws bring in more nuances about IP and fair use, and it’s an area Congress is currently exploring in the context of live streaming online as it looks to criminalize those who infringe on copyrights. Some question how far lawmakers are willing to go and whether a line is being crossed on reasonableness.

“As much as I am in favor of brand holders’ rights, the concept of criminalizing this type of thing more than it already is is a little scary to me,” said Polak, an IP attorney at Taft Stettinius & Hollister.

The U.S. Senate Judiciary Committee approved S.978 – also known as the Commercial Felony Streaming Act – on June 16, and it is now before the full Senate for consideration. Sponsored by Sens. Amy Klobuchar, D-Minn., and John Cornyn, R-Texas, the legislation eliminates the legal distinction between unauthorized streaming and downloading of copyrighted content. Supporters say it clarifies IP law and imposes stricter penalties in an age where sites regularly offer pirated material and illegal downloads of movies and music are available.

Under the current law, streaming is considered “public performance” and not a “reproduction” of any copyrighted work.

This anti-streaming bill complements another piece of legislation the Senate Judiciary Committee approved in May, giving the U.S. Department of Justice the power to block foreign websites that violate copyright laws. The Protect IP Act would prevent U.S. credit card companies and advertisers from accepting business from sites that distribute movies and television shows illegally.

These legislative moves against online copyright infringements are part of a broader White House push for IP protections. The Office of the U.S. Intellectual Property Enforcement Coordinator issued a white paper in March urging Congress to make these changes and provide guidance on murky IP issues, specifically because of questions about whether broadcasting audio or video live over the Internet constitutes an unauthorized distribution of copyrighted content.

S.978 increases penalties for live-streaming violations from a misdemeanor to a felony. Specifically, the bill says an offense consists of 10 or more public performances by electronic means during any 180-day period of one or more copyrighted works. The penalty would apply to anything where the total retail or economic value of the performance is set at $2,500 or if the total fair market value of licenses for that material exceeds $5,000.

Supporters of this bill say the legislation harmonizes existing U.S. copyright law’s civil and criminal sections. In civil cases, a list of rights afforded includes those who reproduce, distribute, prepare derivative works or perform the work. Currently, the criminal infringement rules only cover reproducing and distributing, but not performing. The new legislation doesn’t define “performance” and the text isn’t clear on whether it would apply to embedding a pre-recorded video, such as those found on YouTube.

Indiana attorneys reading the proposed language say it’s broad enough to include avenues such as YouTube, which has a widely used “embed” feature that would effectively be nullified if this law were to pass. Without proper consent, that would fall under the definition of public performance and could be targeted for something as simple as uploading a parody of someone singing a song and posting it on a blog.

While some say concerns about the legislative amendment are overblown because it will be rare for prosecutors to target those who are not the most egregious content pirates, others read the legislation as a move to open up those floodgates at any time.

“In order to be effective, you need provisions to ensure and protect (people) for fair use,” Polak said. “As it’s written now, you’re not just creating a law to get at the bad people, but it also sweeps up in a broad net people who are innocent.”

He reads the legislation language as including YouTube embedding, something that would essentially take the functionality out of the online tool that has become so popular – used by millions of people as well as companies, organizations, and government units. Another question would be what happens if someone posts a portion of a video using a copyrighted song. Whether to go after the person could be a prosecutorial decision.

Polak has represented clients who’ve had issues dealing with logos or trademarks appearing in unauthorized videos on YouTube, and in each of those instances the parties can work out a resolution to either remove the content or allow for compensation. With the new law’s wording, Polak thinks that YouTube’s embedding functionality would be eliminated.

Polak also wonders about those who, for example, perform all or part of a singer’s music and then post a video of themselves singing that online, and someone else embeds that video link onto a personal blog viewed by more than 10 people. The law appears to include that as a criminal felony under this language, Polak said. The wording of the legislation raises the question of whether that’s a violation under the “performance” terminology.

“There’s an argument to be made that the only way you can stop this is if you have fairly cutting and arguably draconian types of penalties,” he said. “Maybe what Congress needs to do is come up with a more strict definition of fair use in the digital age. All statutes have been aimed at the content-maker, rather than the content provider. But at the end of the day, artists won’t be infringing if there’s no way to get that material out to people in a mass way.”

Indianapolis attorney Dan Lueders at Woodard Emhardt Moriarty McNett & Henry said this live-streaming legislation fits into the broader discussion about continually changing copyright law that doesn’t address the realities of the modern age.

“This is just another example of where the entire paradigm of copyright law ought to be revisited in the context of the Internet,” he said. “We need bright lines, but we never get them.”

Describing what he views as three sets of time periods for copyright law, Lueders said he sees a three-way split between the pre-printing press days, time up until the Internet was created, and the years since then.

“The fundamentals of copyright law are radically different, but most of our laws are still ingrained in the context of the 1980s or before that,” he said. “We need new bright lines to deal with these things so some high school kid doesn’t become a felon based on unclear laws.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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