In my last post, Hillicon Valley Gets Duped by Anti-IPR “Activists,” I noted that a group called “Fight for the Future” was dead wrong about the effects of S. 978, a bill proposing that the criminal penalties for high-volume, intentional, for-profit mass piracy should be similar, regardless of whether they involve illegal streaming, copying, or distribution of copies. Fight for the Future claimed that if S. 978 was enacted, teen singer Justin Bieber would be imprisoned for felony criminal copyright infringement.

To see this yourself, go to FreeBieber.org, a site where adults try to terrify Justin Bieber’s many teen-and-tween fans with claims like this, “Justin Faces Five Brutal Years in Prison.” A visitor to FreeBieber.org can also learn that not even Fight for the Future (“FoF”) can pretend to take seriously the premise of this site and its “campaign” against S.978.

S. 978 proposes that for purposes of imposing felony—rather than misdemeanor—criminal liability for copyright infringement, streaming should be treated about the same as copying, or distributing copies. When Justin Bieber was about 13, FoF claims that he posted to a streaming site like YouTube some videos of himself singing some popular songs without obtaining performance licenses from the writers of those songs. From this, FoF leaps to the conclusion that enacting S. 978 would result in the felony prosecution of Justin Bieber.

But that is ridiculous: young Justin would be innocent of criminal copyright infringement under then-existing law or S. 978 for at least two reasons. First, S. 978 would modify the potential criminal penalties for illegal streaming. But Bieber himself did not engage in streaming—he copied and distributed—acts that were already potential felonies under then-existing law. Second, even if Justin’s videos were unlicensed, and thus infringing, (and they probably were not), then he would still obviously lack the scienter required for criminal liability under then-existing law or S. 978. No thirteen-year-old boy becomes a criminal just because he does not know all the nuances of Internet music-licensing.

Nevertheless, if Justin’s early videos were willfully infringing, (as FoF claims) then prosecutorial discretion would be all that stood between criminal prosecution and adults who willfully streamed Justin’s “illegal” videos—knowing that they were infringing. Nevertheless, Fight for the Future is doing just that at FreeBieber.org. In other words, they actually are willfully performing the acts that they claim would get you or Justin Bieber prosecuted—and without a hint of concern. Others should thus take the claims of Fight for the Future and FreeBieber.org with a few million grains of salt.

Worse yet, not only is Frighten the Future’s campaign against S. 978 histrionically dishonest, it is also an unwitting attack on proportionality—the idea that punishment should fit the crime. Fight for the Future treats S. 978 as if it were a bill that would increase penalties for repeated criminal streaming. Wrong: S. 978 would not change the existing maximum criminal penalty for repeated streaming piracy.

What it would do is ensure that prosecutors can bring charges proportional to the more serious and commercially threatening forms of streaming piracy that should be prosecuted criminally. Today, they must choose between extremes: streaming piracy must be prosecuted as either a misdemeanor, the most minor of federal crimes, or as one of the most serious economic felonies—as racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. §§ 1961, 1963.

Most criminal-streaming cases that would actually be prosecuted should fall between these extremes. S. 978 would ensure that—just as they can in cases involving criminal copying or distribution—prosecutors could charge streaming-piracy defendants appropriately, without having to choose between the under-deterrence of a misdemeanor or the overkill of RICO. This proportionality is the common-sense notion opposed by the vacuous anti-S.978 “activists” at Fight for the Future or Demand Progress.

The raw inanity of FreeBieber.org thus raises some questions. Who is behind Fight for the Future? And how could they get basic realities this wrong?

Fight for the Future has “re-launched” the file-sharing piracy fansite Downhill Battle.

According to Hillicon Valley, Fight for the Future was co-founded by “Holmes Wilson.” He also “co-founded” the inaptly named KaZaA/Grokster/LimeWire fansite Downhill Battle, a site that waged an increasingly “uphill battle” to have its love of commercial piracy taken seriously. From August 2003 through August 2005, (the “preGrokster era), Downhill Battle posted an average of 16.4 rants per month. Afterwards, Downhill Battle posted an average of 1.2 rants per month, until it expired in 2009 with its last words, “Downhill Battle’s back. More soon….”

And while Downhill Battle never became “famous” for anything, the organization spent a lot of its time and energy berating people who buy online music legally—and the hard work of everyone who made that possible, including songwriters, recording artists, music publishers, performing-rights organizations, record labels, Apple, and the late Steve Jobs.

Predictably, Holmes Wilson thus concealed his past and described his re-launched, re-co-founded anti-copyright group Fight for the Future as if it were not just Downhill Battle Mach II:

We are a brand-new activist org aiming to improve the laws shaping tech (e.g. copyright) by shifting the public opinion that shapes these laws.  Think the EFF… or [Public Knowledge]…  but more campaign-focused (also more viral and fun).

But Fight for the Future is just Downhill Battle Mach II. For example, here is its description of the booty amassed by commercial copyright-piracy syndicates like Grokster, KaZaA, LimeWire, and Isohunt:

After spending thousands of years building libraries of donated books, why do governments try to tear them down when they happen spontaneously online?

It is absurd to describe the contents of FastTrack, Gnutella, or BitTorrent-based file-sharing networks as “libraries of donated books.” Even Free-Culture-Movement founder Charles Nesson described the contents of file-sharing networks as “porn and petty crime.” Nesson’s protégé, Professor Lawrence Lessig, has admitted, “I have given literally hundreds of speeches where I expressly say p2p filesharing is wrong, and kids shouldn’t do it. I think FREE CULTURE says that more than a dozen times.”

Nevertheless, Fight for the Future still pretends that file-sharing is really about donating “books” to LimeWire’s “libraries.” Meanwhile, back on Earth, actual grown-ups at the Consumer Protection Bureau of the Federal Trade Commission have sued one of Fight for the Future’s beloved “librarians” for duping consumers into “donating” their music, video, and personal files involuntarily—a pervasive, dangerous behavior noticed years ago by students of file-sharing less oblivious than the founders of Downhill Battle and Fight for the Future, a.k.a., Downhill Battle Mach II.

The Hill’s technology blog, Hillicon Valley just posted Brendan Sasso’s story, Bill would send Justin Bieber to prison, group says. As the father of a fourth-grade girl, I assumed that that the bill mentioned must expand criminal-nuisance laws. But the whole story was just nonsense: It just recorded gibberish spouted by anti-copyright “activists” with a grip on neither copyright law, nor technology, nor reality.

The alleged Jail-Justin “bill” turned out to be S. 978, and it will do nothing to protect parents of tweens or teens from either Justin Beiber or the next teen-dream-boy singer. Instead, S. 978 would merely fix a minor inequity in our existing criminal-copyright laws. Today, any infringement, including illegal streaming, is already a federal crime if perpetrated intentionally and for “financial gain.” See 17 U.S.C. § 506(a)(1). Nevertheless, higher criminal penalties can apply to the willful infringement of works with a total retail value of over $1,000—but only if they were copied or distributed, not streamed. That makes no sense, so S. 978 proposes to treat $1000+ of intentional, criminal streaming just like $1,000+ of intentional criminal copying or distribution. Here is how Sasso’s post describes this proposal:

Justin Bieber first gained fame by posting videos of himself singing famous pop songs. According to the group Fight for the Future, those videos could land the 17-year-old pop star in prison under the proposed legislation.

“Those videos are still on the Internet, so if Bieber doesn’t pull them all down right away, he could be prosecuted and sent to the slammer for five years on felony charges,” Fight for the Future claimed in a press release.

To understand why this is all wrong, you need only know a bit about copyrights and technology. When young Justin Bieber posted videos of himself singing famous songs written by others, he did not engage in streaming, (which copyright law would call a “public performance”): Instead, he made a copy of a video file and then distributed that copy to the servers of YouTube or some other social-networking site. In other words, a streaming-related bill like S. 978 is irrelevant to uploaders like the young Bieber because they already perform the copying-and-distribution that could—if scienter and profit requirements were met—trigger the higher felony penalties that the law already imposed. And yet—somehow—Bieber’s music videos failed to trigger (1) a criminal prosecution for felony infringement; 2) a criminal prosecution for misdemeanor infringement; 3) a civil copyright-infringement lawsuit; or even 4) a simple DMCA take-down notice.

To those less histrionic than Fright for the Future, these glaring clues should indicate that (1) Bieber’s videos were almost surely legal, (2) Beiber’s acts were not even arguably criminal, and (3) even were there some technical infringement, it was so inconsequential that no one cared about it. Consequently, enacting S. 978 would result in the prosecution of neither Justin Beiber nor some modern teen who uploads videos of himself singing hit songs to YouTube or Facebook. Here are a three of the many reasons why this is so.

Neither existing law nor S. 978 criminalizes the act of being a kid or consumer who does not understand the nuances of performance-right licensing: Copyhate “activists” love to forget this: To commit any form of criminal infringement, (under existing law or S. 978), you must act willfully (you must intend to infringe someone else’s copyrights) and you must willfully infringe for the purpose of “commercial advantage” or “private financial gain.” See 17 U.S.C.§ 506(a)(2). Lest anyone literate miss this point, the criminal copyright statute actually says it twice. See 17 U.S.C.§ 506(a)(2).

Fright for the Future’s argument presumes, (correctly, I would guess), that young Justin Bieber did not know that persons publicly performing a hit song written by someone else need to get a public-performance license from the songwriter. Failing to understand what conduct might constitute infringement or require a license cannot trigger intent-and-profit-based criminal infringement liability. S. 978 will not change that.

Even if posted years ago, Bieber’s videos were probably licensed: Bieber could not have “gained fame” from his videos if they were quickly taken down. Since they apparently were not, they must have been either utterly unobjectionable or they were licensed—even if Bieber himself did not know that.

One aspect of online music licensing is so simple that most UGC and social networking sites did it years ago: Getting a valid license to publicly sing hit songs written by others. Thanks to two antitrust settlements in the 1940s, such licenses are standardized, simple, and relatively inexpensive because prices are fixed by a federal “rate court” at sub-market rates. It makes no sense for hosting-site operators to fail to get these licenses. Even if young Bieber once knew nothing about performance-right licensing, he was probably licensed. Today, the licensing situation is much better.

Federal prosecutors have never, nor will they ever, prosecute ordinary consumers for technical infringements unworthy of even a takedown notice: This is the critical flaw in the Fright-for-the-Future histrionics. Criminal copyright prosecutions are a scarce, valuable resource—and copyright owners would complain loudly were those scarce resources squandered on YouTube karaoke videos.

Criminal copyright prosecutions must target large-scale, deliberate piracy that threatens the economic incentives that copyrights are supposed to create—not consumer-scale infringement. Consider Joel Tenenbaum: He admittedly willfully infringed many hundreds of copyrights while acting as a paid-in-kind distributor for a global, commercial piracy syndicate; he lied under oath; he destroyed evidence; and he falsely blamed his own deliberate acts on other members of his own family AND THEN he annoyed the U.S. Department of Justice by forcing it to intervene in his case to defend the constitutionality of the Copyright Act. Still, no criminal prosecution.

So Justin Beiber can rest very easy—and so can my kids—even after S. 978 is enacted.

Finally, I want to reassure my daughter: No, sweetie, Daddy does not go to work to try to imprison the next Justin Bieber—even though he is really glad that you still prefer Taylor Swift. In fact, that’s kind of the opposite of what copyright owners want to do with the next teenage boy who might inspire you and your pals to spend lots of money. If the Hillicon Valley post Bill would send Justin Bieber to prison, group says, suggested otherwise, that is because some anti-copyright nuts blithered easily detectable nonsense to a blogger. Daddy’s real job is to help correct such errors.

To the surprise of almost no one, in The Authors Guild v. Google, Inc., the U.S. District Court for the Southern District of New York utterly rejected Google’s attempts to use its Google Book Search Project—its  broadside attack on the international norms and laws defining the exclusive rights of authors—to permanently cripple all present or future challenges to Google’s dominance of the markets for internet search and advertising.  But many may be surprised that a different judge in the same district recently authorized similarly appalling conduct by Google in Viacom v. YouTube.

Authors Guild v. Google: Google Argues that As Long as Authors Can Opt-Out, Google Should Be Able to Commercially Exploit Unauthorized Copying In Order to Cripple Potential Competitors.

Simply put, the Court correctly concluded that Google’s proposed Amended Settlement Agreement (ASA) was not a settlement, but an unfair, unreasonable and illegal attempt to ‘implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.’”

That one sentence captures the two fundamental defects in Google’s ASA. In effect, the ASA presumed that all members of a vast class of American and international authors past, present and future would presumably want Internet rights in their works to be managed by Google because it had shown such “calculated disregard of authors’ rights.” In effect, the ASA would have let Google copy, search, and commercialize a unique and ever-growing repository of works without their authors’ permission while ensuring that no Google competitors could do such horrid things without Google’s permission.  In Authors Guild, the Court thus held the resulting exercise in self-contradiction illegal for two fundamental reasons.

First, “Google pursued its [Book Search] project in calculated disregard of authors’ rights. Its business plan was: ‘So, sue me.’” The Court thus found that Google’s ASA violated the most basic principles of domestic and international copyright laws: “[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.”

Second, the Court found that the ASA used mass infringement to impose unreasonable restraints of trade intended to perpetuate Google’s dominance of the markets for Internet search and advertising.  The Court held that the “ASA would give Google a de facto monopoly over unclaimed works.”  It would thus “arguably give Google control over the search market” because the ASA presumed that, absent an objection, creators and creative industries would want to grant Google both the exclusive right to copy and exploit their works without their permission and the exclusive right to act as their literary agent whenever Google competitors want to make similar unauthorized uses of their works.  This ruling from Authors Guild should thus send a clear and powerful warning to all antitrust-enforcement and consumer protection agencies.  Google will exploit piracy to dupe officials into imposing anti-competitive restraints of trade just as casually is it will exploit art to dupe parents into compromising their own children’s privacy.

Viacom v. YouTube: Same Google Arguments, Different Case.

To recap, in Authors Guide v. Google, a District Judge of the Southern District of New York held that it would be unfair, unreasonable and illegal to interpret a federal law to let Google force “copyright owners to come forward to protect their rights when Google [intentionally] copied their works without first seeking their permission” for the purpose of crippling competing search and advertising services that did lacked Google’s “calculated disregard of authors’ rights.”

That’s great, but in In Viacom v. YouTube, Google will soon defend on appeal the grinding illogic of a District Judge of the Southern District of New York who held that it would be fair and reasonable to interpret § 512(c) of the Copyright Act to let Google force copyright owners to come forward to protect their rights even if Google intentionally copied their works without first seeking their permission in order to profit from mass piracy while crippling competing streaming-video services that lacked Google’s calculated disregard of authors’ rights.  That’s not so great.

I have said before that Google’s claims in Viacom are but a case of Grokster Redux. Now, they are also Authors Guild Redux. The only difference is that Google’s arguments in Viacom are far more extreme than any it made in Authors Guild.  When the Second Circuit reviews the District Court’s decision in Viacom, it will have to presume that a reasonable jury would interpret all of the facts and draw all reasonable inferences in the manner most favorable to Viacom. At a minimum, the Second Circuit will thus have to presume the truth of the following allegations:

• The original founders of YouTube intended to and did build a video-streaming business based upon piracy in order to destroy law-abiding competitors so they could “sell out quickly” to a big company like Google.
• Google bought YouTube knowing that its own agents had concluded that piracy accounted for most of YouTube’s content and value.
• Instead of remediating YouTube piracy, Google perpetuated it until it could selectively implement infringement-filtering technology.
• Google then made creators the following generous offer: If you want us to use our new filtering ability to protect you from otherwise rampant YouTube piracy, then you must first license your content to YouTube at prices and on terms acceptable to Google.

The resulting problem is obvious: If you assume the truth of such allegations, then you assume that the original YouTube, Google, and Google’s YouTube subsidiary were engaged in the sorts of extortionate conduct that, if proven and prosecuted, could constitute criminal racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO). See 18 U.S.C. §§ 1961-68. Indeed, if proven, the preceding allegations would reveal a classic racketeering scheme: Three commercial entities would have intentionally caused or induced mass piracy in order to profit from crime while crippling all law-abiding competitors. That is precisely why Congress criminalized racketeering in RICO and amended RICO in 1996 to make willful piracy one of the forms of “racketeering activity” that can trigger RICO liability.

Worse yet, in Viacom, Google should be unable to argue that Section 512 actually legalized criminal racketeering based upon mass piracy. No, Google can “merely” argue that, as long as YouTube and Google were responding to copyright takedown notices and affecting willful blindness, neither could lose any of Section 512(c)’s protections against certain civil remedies for copyright infringement—even if they were also intentionally operating a criminal racketeering enterprise that induced and caused mass piracy in order to profit from criminal piracy and destroy law-abiding competition. If so, then the only competitors who could only counter this scheme would be those willing to engage in conduct that would still constitute criminal racketeering under existing law. Law-abiding, copyright-respecting video-streaming services would thus be permanently disadvantaged.

By contrast, if Viacom wins the appeal of Viacom v. YouTube, the Internet will again be far safer not only for creators, but also for law-abiding technologists eager and able to challenge the lumbering Google behemoth. You see, Google made a mistake: It tried its YouTube-shake-down scheme on the company that had once produced a film called The Godfather and thus understood what sort of “offer” it had just received.  It then sued Google to uphold the rule of law and inspired other creators to do the same. And then, Google quickly abandoned its shake-down scheme, offered its state-of-the-art infringement-filtering technology to all creators, and turned YouTube into the model Internet citizen that it is today.

No interpretation of American civil “safe-harbors” against liability for civil damages can make the sort of conduct presumptively at issue in Viacom even arguably lawful. Consequently, I hope that in Viacom v. YouTube, the Second Circuit will soon join the District Court in The Author’s Guild v. Google by holding that any attempts to encourage mass piracy in order to profit from crime and deter law-abiding competition remain profoundly unfair, unreasonable, and illegal. International law requires all civilized nations to criminalize “copyright piracy on a commercial scale”—not to make it the weapon that unprincipled monopolists unleash against  law-abiding internet entrepreneurs that want the investments and the achievements of creative artists to be as well-respected as their own.