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.