Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate

The above YouTube video had over 500K views

The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here

The EFF's take:

Oppose Congress' Criminal Streaming Bill


S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!

Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.

Techdirt reports on YouTube protests here

Text of the bill below:

112th CONGRESS


1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
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IN THE SENATE OF THE UNITED STATES

May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
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A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Criminal infringement of a copyright.

(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—

(1) in subsection (b)—

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B) by inserting after paragraph (1) the following:

“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—

“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) 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
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and

(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.

(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—

(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and

(2) in paragraph (3)—

(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and

(B) in subparagraph (B), by inserting “or public performance” after “distribution”.

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Direct Infringement and Digital Video Recorders: Catch as Cache Can

Cartoon Network LP v. CSC Holdings, Inc., --- F.3d ---, 2008 WL 252614 (August 4, 2008). Instead of taking a satellite signal and broadcasting it straight into your home at the time dictated by the broadcaster, your local cable company sets up a very fancy digital box (Digital Video Recorder or “DVR”). A DVR permits you to use your remote control, point it at the television, and program that digital box to copy a future broadcast. When the broadcast comes in, the digital box copies the broadcast for you. When you want to view the broadcast at a different time, you and your family can access the copy on the digital box.

Most of us think of a DVR as something we buy, put underneath the television, puff out our chests and think “fair use” as we make a personal use copy.

But what if the box is miles away from your home, is owned by your local cable company, and is a massive computer monster that invites everyone to make copies from it. Has the cable company made a copy? Or did you make a copy? And if you play your copy by hitting the remote and putting the copy in the digital box in motion, did you infringe?

Well, one would have guessed that the cable company had engaged in copyright infringement, one way or another. And that’s what the local district court found. But on appeal, in an August 4, 2008 decision that will make happy those who really dig the technological questions involved in litigation over devices that make copies, the Second Circuit Court of Appeals reversed.

Why? Well, most of us acting as a plaintiff who owned a copyright would have alleged that the cable company had engaged in both direct copying and indirect or contributory infringement. Really, that DVR seems like a very Napster-like infringing mechanism that permits people who pay the cable company to make infringing copies and for the cable companies to profit.

But in a very thoughtful decision that really delves into the technology involved and the legislative history involved, the Second Circuit really digs into the question of what constitutes a copy, what is necessary for fixation of the copy and how much time a copy must exist to be a copy, with a very thorough survey of the law related to various ephemeral copies, such as a copy of a program made that boots up into your computer’s RAM. The Second Circuit found that “fixation” of the copy imposes both an “embodiment” requirement and a “duration” requirement. The Second Circuit found that the machine’s buffering system, which made a copy of .1 seconds of each channel’s programming at any one time and such content did not last for more than 1.2 seconds. The Court found that the plaintiff’s copyrighted material was not “fixed” in the buffers for an amount of time sufficient to satisfy the "duration" aspect of fixation and therefore that the buffers did not make an infringing copy.

The most interesting part of the decision discusses the question of whether or not the cable company is directly liable for creating the copies. And in a discussion of copy shop cases and the Supreme Court’s Sony v. Universal Films case, the Second Circuit emphasized that the U.S. Supreme Court and the Copyright Act really make a distinction between direct copying and contributory liability for someone who actively induces an infringement.

So the court found that it is the actual consumer who makes the copy by pre-programming the digital box to capture the incoming broadcast for later use. In the case, the plaintiffs for some reason did not allege that the cable company engaged in contributory infringement, so the lower court’s decision was reversed. The Second Circuit explicitly kept open the question of whether the cable company was liable as a contributory infringer.

On the issue of whether playing the new copy at a different time by the consumer constituted a “performance” which required a license from the plaintiff copyright owners, the court’s answer was “no”.

This is an important, difficult and complex case, and worth reading. It is likely to be influential in litigations involving services that make potentially copyrighted materials available to consumers.

Right to Radio and TV in Bars, Restaurants and Truckstops

You walk into a small barbershop. There's a transistor radio going with some oldies and a soundless sports game going on a small television. Copyright infringement? Under the Copyright Act's "homestyle" exception found at Section 110(5)(A), your barber's probably safe.

You own a commercial establishment, like a truck stop. Instead of playing the commercials supplied by ABC, you install an electronic sensor that detects the advertisements, and inserts your advertisements instead of ABC's. Does ABC have the "right to sell and append commercial advertising to the beginning, middle or end of a film, news show, sitcom, sporting event, or other program that is shown on television whether or not [ABC] own[s] the copyrights in those shows?"

A recent decision by Judge Deborah Batts explores the "homestyle exception" embodied in 17 U.S.C. 110(5)(A) and (B). American Broadcasting Companies, Inc. v. Flying J, 2007 WL 583176 (S.D.N.Y.). Section 110 is titled: "Limitations on exclusive rights: Exemption of certain performances and displays". To figure out whether the establishment is exempt, you need to read both sections "A" and "B" of the statute to see whether the establishment is small enough to qualify. Congress intended to "allow the use of ordinary radios and television sets for the incidental use of patrons in small businesses or other professional establishments, such as taverns, lunch counters, dry cleaners, doctors' office, etc."

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(5)
(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—
(i) a direct charge is made to see or hear the transmission; or
(ii) the transmission thus received is further transmitted to the public;

(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if—
(i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission or retransmission;
(iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed

In ABC v. Flying J, Judge Batts found that the owner of 130 truck stops infringed Plaintiff's copyrights by showing network programming downloaded from a satellite dish and using an apparatus to remove and replace the commercials. The court dismissed the unfair competition claim based on New York law as being preempted by the Copyright Act, 17 U.S.C. 301. The court found that the mere display of the television programming at the truck stops probably fell within section 110's homestyle exception. However, the court's copyright infringement analysis was based mainly on the fact that the brand new commercial technology to remove and replace advertisements did not qualify for the homestyle exception.

What sort of right exists in the spaces filled with advertising before, during and after television transmissions was not reached by the court, but the court made clear that the answer was to be found in the Copyright Act, rather than under state law.

Practice Tip: To get a good decision protecting the empty spaces before during and after their copyrighted programming, television industry plaintiffs may need the cooperation of advertisers who own the copyrights in the advertisements to ensure that they have standing in their next lawsuit against a defendant cutting out paid advertisements.