Sen. Amy Klobuchar. Photo: Kathy Easthagen for the Minnesota Independent
Sen. Amy Klobuchar. Photo: Kathy Easthagen for the Minnesota Independent

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

Measure passed in Senate Judiciary Committee Thursday
By Paul Schmelzer
Thursday, June 16, 2011 at 3:30 pm

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.



Comment posted June 16, 2011 @ 4:15 pm

I’m not a huge fan of Klobuchar, in part because she ran her campaign on 100% talking points.

This latest song-and-dance (get it?) is just embarrassing. She needs to stay the hell away from issues with which she is totally unfamiliar. She’s wading into unknown waters. Educate yourself or GTFO.

Comment posted June 16, 2011 @ 4:16 pm

I should say…100% leftover and recycled talking points from the 2004 John Kerry debacle.

Comment posted June 16, 2011 @ 4:32 pm

Why do I all of a sudden have this feeling that Amy has a one-track mind – that of a prosecuting attorney? As described, the vague language is very, very problematic – and not funny at all!

Comment posted June 16, 2011 @ 4:59 pm

Sen. Klobuchar continues to be a huge disappointed to many. Her leadership skills are poor at best. This is a priority? The language fails along with it’s execution. We could do so much better than this. The middle is asleep. WAKE UP FOLKS!

Comment posted June 16, 2011 @ 5:40 pm

Another moderate tinkering around the house while the foundation is crumbling, goal #1, re-election.

Comment posted June 16, 2011 @ 9:41 pm

What ever happened to Amy closing the “Tax Loophole” for offshore corporations?? That is what she ran on in 2006… Now she’s punishing some little 2 bit peasant for downloading illegal music??? AMY K !!! … YOU ARE DEPRESSING!!!!

Comment posted June 17, 2011 @ 7:31 am

This bill will never work. Expect the VPN business to take off if this becomes law, as people broadcasting streams will simply hide their IP addresses using a VPN. Klobuchar really needs to think these things through.

Comment posted June 17, 2011 @ 11:35 am

My disappointment with Klobuchar as definitely grown over time. When we needed strong leadership on the health care debate not that long ago she didn’t produce.

Dave wrote,
“Another moderate tinkering around the house while the foundation is crumbling, goal #1, re-election.”


Comment posted June 17, 2011 @ 12:43 pm

Example of a draft of letter to a Senator on this topic:

Dear Senator or Editor ___________,

I am literally outraged by the proposed “The Commercial Felony Streaming Act” (S. 978) and I am writing you upon the first moment that I am hearing about this nonsense so that you will work to shut it down before it gains any momentum and so that you can ask Senators Amy Klobuchar (D-Minn.) and John Cornyn (R-Texas) if they have lost their minds.

The biggest problem with this proposed legislation is that its net will catch people who unintentionally engaged in this action. You might have forgotten: because Education in America has been bankrupt for decades, many people will not understand this legislation or understand that a single click on a triangle could send them to prison for up to five years. And please do not be persuaded by Klobuchar & Cornyn that it’s 10 clicks in 180 days. After the ninth click it is ONE click that sends a person to prison. (Do I get to steal nine candy-bars or cars before I get arrested? )

Our computer networks are so insecure that even Sony can fall prey to hackers; is it unclear to Klobuchar & Cornyn that Donald T. Dumbbell, America’s average web surfer, will be unable to defend himself from hackers intent on making it look like he is the one steaming illegal content?

Let’s say that Klobuchar & Cornyn are steadfast in their defense of this nonsense; ask them if they want to clog our judicial system with cases where no one was hurt. Klobuchar & Cornyn will exclaim that huge media companies were hurt! What do Americans say? So what! We want jobs! And Peace. And we believe, as good Americans, that huge media companies can defend themselves. Is Apple contacting Klobuchar & Cornyn like a big cry-baby? No! They are innovating. What about the companies making money through Pandora, Hulu, & Netflix? These are not crybabies! These are companies that are innovating and changing with the times to serve consumers. These companies do not need Klobuchar & Cornyn clogging up our judicial system and prisons for a bunch of cry-babies who do not seem to be able to protect their intellectual property.

Let’s say that Klobuchar & Cornyn do not mind clogging our judicial system; ask them if they mind sending grandmas and the mentally handicapped to penitentiaries for up to five years. Enough said.

The American people are tired of watching corporate interests trump the interests of the rest of us. If you want to see demonstrations that will make the ones in the Middle East look like a 4th of July barbecue, encourage Klobuchar & Cornyn to push this. If you believe in the principles that made our once great country strong, liberty and justice for all, you will forward this message to Klobuchar & Cornyn and let them know that American citizens will not stand for this and this will be the legislation that activates each and everyone of us to demand the justice we deserve!

Comment posted June 17, 2011 @ 2:07 pm

She was never a progressive liberal ..her prosecuting attorney roots now show…

I agree..unlike frankin, she is a disappointment

lets make everything a felony!… to this prosecuting hammer..everything is a nail

Dr. Jack Shepard
Comment posted June 17, 2011 @ 4:04 pm

I say hi REO!

Give Amy a 2nd chance, everyone has that right. Amy has even been asked to give from her heart people a second chance. Let’s see how her US Senate re-election goes.

I wish her only the best in her try for re-election for NOW!

Dr. Jack Shepard- who will be their if Amy calls??????

Always remember Sen. Al Franken is Blessed with a job for life only because Dr.. Jack Shepard believed in him and was correct. Al has done the best job in the US Senate then anyother JR. US Senator in history if you ask Dr. Jack Shepard

Comment posted June 20, 2011 @ 7:35 am

One again, the media gets it wrong. The law ONLY applies to those who BROADCAST that streams, NOT to those who merely VIEW the streams. Those who only watch streams, and do not broadcast them, are in the clear.

Paul Schmelzer
Comment posted June 20, 2011 @ 8:28 am

Chilly8: Please show me where that distinction is made in the law. “Broadcast” tends to refer to information sent via the airwaves, not the internet. This law specifically deals with presenting “performances by electronic means.”

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[...] a bill that would increase the status of streaming copyrighted performances online to a felony, The Minnesota Independent reports. Senator Amy Klobuchar (D-MN), who introduced the bill last month, says that the bill is [...]

Comment posted June 20, 2011 @ 11:46 am

To put it another way, the law only criminalizes those who SEND streams, not those who watch them.

But if any amedment is made in the final version fo criminalize viewing, one can use an offshore subcription VPN service to hide thier tracks. They only cost about $200 a year.

Paul Schmelzer
Comment posted June 20, 2011 @ 12:51 pm

Again, Chilly8, I don’t see mention of stream broadcasters in the proposed amendment to the US code. Can you show me where that appears? That may be what she’s intending, but what’s most germane is what’s specifically defined in the law.

Comment posted June 20, 2011 @ 2:22 pm

Even if they do apply the law to viewers, I can always use a VPN service I suscribe to, for about $200, to hide my IP address, so that I cannot be traced and prosecuted

Comment posted June 20, 2011 @ 4:09 pm

There also has to be a intent to make money as well. This is why viewers are not subject to the law. You have to stream with the specific intent of making money off your stream. There has to be some kind of commercial gain or personal financial gain, in order for this law to apply. This is why viewers are in the clear, unless they take that stream and rebroadcast it somewhere else for financial gain, and I have seen a few sports streams on MyP2P that are are rebroadcasts of streams from elsewhere, with flash ads and the like. Now, THOSE people would be affeected by this law, but somehow merely viewing a stream, without intent to make money would not be affected.

Comment posted June 20, 2011 @ 6:42 pm

One other note about having to have to intent to make money. That is what the current bill says. However, the ACTA, which has still not been completed, or the Trans Pacific Partnership, scheduled to be signed and competed in November, to change that.

If the the Commercial Felony Streaming Act is indeed a fait accompli, hopefully it would be passed before ACTA and/or TPP required Congress to make the bill even worse, such as languahe specifically making viewing videos a felony, or dropping the requirement that it be for commercial purposes.

If they pass the bill before November, then any required changes under TPP would almost certainly not be made before 2013. This is becuase Congress has to pretty much wrap everything up by July of next year, on account of the political conventions, and the election, and will have far more important things than amends the Commercial Felony Streaming Act, after it is passed. Congress still has to pass two more budgets, and that is going to be a big struggle right there.

Comment posted June 20, 2011 @ 9:00 pm

As far what is a “public performance”. I could see this law making felons out of all those people who play their car stereos annoying loud, or the teacher who shows a movie in the classroom as par of the lesson plan.

Had that been the law when I was in high school nearly 30 years ago, one English teacher, who would, say, show the movie version of To Kill A Mockingbird, after everyone read the book, could have likely committed a felony under this law showing the movie in class, or the history teacher who showed part of Gone With The Wind, or I, myself, could have ended up a felon for showing part of The Right Stuff, when I was giving an oral report on the space program in high school. Of course, I am not sure how the federal system would have treated me back then as a juvenile offender.

Comment posted June 21, 2011 @ 12:01 am

Chew on this, even if they did start going after viewers, do you really they they would go after all of the thousands of viewers that some channels have? There would not be enough prison space to hold them all, even if you used every jail and prison in the United States, especially some streams of PPV fights, which can have over 100,000 viewers at one time.

The next time there is a PPV fight on, especially a marquee match, such as Paquiao-De La Hoya, check out the number of viewers on Justin and Ustream channels. 100,000 plus viewers times several channels? The courts would be clogged up for years prosecuting them all. And where would we imprison them all? The government is effing broke. They are running up the national debt borrowing money to keep the govrernment running.

I could see going after the operators of the channels, if they are in the USA (some chan ops broadcast from China, where the fight is often on free OTA television in that country), but going after hundreds of thousands of users would be something the government is not equipped to do.

Comment posted June 22, 2011 @ 8:30 pm

For the bill to apply:

* The offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; AND

* The total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

* The total fair market value of licenses to offer performances of those works would exceed $5,000

Note that it be 10 times streaming AND one of the other two taking place. So someone watching something for personal use is certainly not going to reach the $2,500 threshold very quikcly, even if they rech mroe than 10 plays. Watching a sporting event on Sopcast from, say, CCTV-5 is certainly not going to trigger that monetary threshold. So all of you that watch sporting events on CCTV-5 using Sopcast, TVAnts, PPLive, or TVU are certainly not going to trigger this threshold. Then again, since CCTV-5 is own and operated by the Chinese government, there is the question of whether US copyright laws would apply in the first place.

The same with one Russian channel available on both free and paid streaming services, NTV. Since it is owned by the Russian government, there is a question of whether copyright laws would apply. Since the Russian government does not seem to enforce any copyright on its government run channels, except during the Olympics, I don’t see how anyone could be prosecuted in the United States for watching NTV.

I like to watch skating on governmetn run TV out of Russia, because it is far more enjoyable than on American TV networks, particularly NBC. I don’t get pelted by ads every 5 minutes or so watching on NTV. The Russian government does air some ads on its channels between programs, but they do not air them during the program, making watching figure skating, Grand Slam Tennis, the Super Bowl, or the World Series, far more enjoyable than on an American TV network, where i get pelted with commercials every 5 minutes.

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