This is No Way to Run a Railroad

This is No Way to Run a Railroad

Yesterday, #EndDMCA was trending on twitter, largely due to the promotion of Chelsea Manning. The hashtag was in response to a bill introduced by Senator Thom Tillis (R-NC) to deal with the so-called “felony streaming loophole,” which has generated significant controversy among streamers on Twitch and YouTube. The language will likely be included in the upcoming, must-pass continuing resolution to fund the government.

If you can believe it, dear reader, the internet has gotten a few things wrong about the bill. But considering the limited time given to read the bill, the total absence of public hearings, and the urgent nature of continuing resolution legislation, it’s hardly surprising that things are shaking out this way.

The legislation in question, misleadingly titled the “Protecting Lawful Streaming Act of 2020,” (the bill criminalizes unlawful streaming) would make it a felony offense to:

willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that—

(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;

(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or

(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.

There has been a lot of confusion about this bill, but here’s the skinny: despite coverage which makes it seem that it applies to anyone who includes a work protected by copyright in their video stream, the bill only targets streams that are solely for the purpose of performing a protected work. (See the bolded language above). In other words, if you play a song without permission during your livestream–even if such use is infringing–you’ll be fine with respect to this law.

This bill also doesn’t have anything to do with the Digital Millennium Copyright Act (DMCA). “Nothing,” the bill states “in this section shall be construed to…affect the interpretation of any other provision of civil copyright law, including the limitations  of liability set forth in section 512 of title 17 [the section created by the DMCA covering notice-and-takedown].” #EndDMCA is a catchy hashtag, but it doesn’t really have anything to do with the bill.

Do not confuse these clarifications with anything resembling an endorsement of or praise for this legislation. As a matter of policy, copyright infringement should not be a criminal matter–let alone one that merits a felony conviction. I appreciate the desire to pursue the proliferation of infringing content (though the scope of infringement is far too broad), but throwing someone in a cage and depriving them of the right to vote (depending on which state they live in) is a punishment that doesn’t fit the offense. 

Policy aside, this is a process failure through and through. Misconceptions surrounding the legislation were entirely avoidable: had the process been more transparent, had the bill text been introduced sooner, and if it weren’t part of a must-pass funding bill, I have a difficult time imagining that the opposition to this bill would be this intense.

Copyright law is tricky enough as it is. Even if opponents of the legislation are exaggerating the harm, confusion is the product of a rushed and opaque process. When proposed legislation isn’t clearly communicated and debated by relevant stakeholders, it’s inevitable that people will overcorrect and avoid otherwise lawful behavior. Katharine Trendacosta from the Electronic Frontier Foundation puts it well when she says:

A felony streaming bill would likely be a chill on expression…We already see that it’s hard enough in just civil copyright and the DMCA for people to feel comfortable asserting their rights. The chance of a felony would impact both expression and innovation.

Of course, this kind of  legislation is enabled via the brinkmanship budgeting practices Congress has engaged in for years. When a government shutdown is on the line, it’s easy to throw everything but the kitchen sink into a funding bill.

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By |2020-12-17T10:13:45-08:00December 17th, 2020|Blog, Intellectual Property|