Unintentional felons?

Whenever a new law is proposed in Congress, and especially when it deals with copyright, it behooves us to look both for the reasoning behind the bill and it potential for unintended impact on non-targeted activities.

Such a bill is S 978, also known as the “10 Strikes” bill, which was introduced by Sens. Klobuchar, Cornyn and Coons and recently reported out of committee to the full Senate.  The language of the bill amends both copyright law and the federal criminal statues to turn ten or more public performances of a copyrighted work “by electronic means”  — presumably unauthorized performances — into a felony punishable by up to five years in jail.

The purpose of this bill seems relatively obvious; it would further shift the expenses of copyright enforcement from the private companies that create content onto the taxpayer.  Copyright is generally a private tort, and the copyright owner has the obligation to bring lawsuits against infringers in order to enforce its rights.  By converting infringement into a federal crime, the costs of litigation would be borne by the government (the Justice Department) and, ultimately, by taxpayers.  This has been a continuing theme of the lobbying efforts undertaken by “Big Content” in the past few years.  During testimony in favor of this bill (and the PROTECT IP Act, a similar proposal to increase federal enforcement efforts) a DOJ official told the Judiciary Committee that there have already been 15 new attorneys and 51 FBI agents hired under the earlier PRO IP legislation.  The introduction of these bills is an example of the continuing success of industry lobbying.

Copyright law has had some criminal provisions for quite a while, but the threshold for this felony is really quite low — only 10 unauthorized public performances within 180 days.  So the expense of industry efforts to reign in YouTube, as well as less above-board media sharing sites, would dramatically shift to government lawyers instead of those employed by Disney or Comcast if this bill were adopted.

The intended consequences of this law are bad enough, at least for those who do not want to hand more tax money to the entertainment industries.  But the unintended consequences could be worse.  As the blog TechDirt points out, this bill could create liability for folks who embed YouTube videos into their webpages or blogs.  Others have suggested that online karaoke could also become a criminal act.  Since it is public performances and not just reproduction that is criminalized here, some one who embeds a video (or even links to it?) would need to know in advance that the video was made available with authorization.

As the parenthetical question above indicates, the absence of a definition of what constitutes a public performance makes this law especially ill-conceived.  And it is not even made explicit that only unauthorized public performances would trigger liability, although presumably this enforcement bill cannot by itself criminalize public performances that are not even infringing.

For higher education, it is useful to distinguish which performances might raise a problem if this bill were enacted and which ones would not.  Performances in a live classroom are specifically authorized by the Copyright Act, so they would not have the potential for criminal liability.  Film clips that are transmitted through a closed learning management system are similarly authorized (although with several qualifications), so this common practice would not become criminal either.  Nevertheless, the fact that we have to ask the question indicates how dangerous such thoughtless legislation can be.

Where risk would arise is in those many supplemental educational communication tools that faculty use to enrich there teaching.  Embedding a video in a class blog might become problematic, as could having students make and share videos in which background music, even if incidental, was included. And a cynic might see behind this new effort to ratchet up penalties for infringement an attempt to frighten other universities away from following the example of UCLA in streaming digital video for classroom teaching; under this bill criminal charges might be possible if a fair use defense of that practice were rejected.

Another big question raised by this proposal is whether or not “accomplice” liability might attach to universities because of criminalized public performances initiated by students.  Courts have apparently never accepted a criminal parallel to contributory infringement, but the Department of Homeland Security asserted exactly that theory when it began seizing the Internet domains of web sites that allegedly linked to pirated content.

With this “10 Strikes” bill is is easy to see why it is important, yet extremely rare, for Members of Congress to think before they “strike.”

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