White House Wants It To Be A Felony To Stream Infringing Materials

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David Makarewicz, Contributing Writer
Activist Post

One aspect of the White Paper that has grabbed headlines is the Obama Administration's recommendation that Congress clarify that felony copyright infringement includes infringement by streaming.  The current legal definition of felony copyright infringement only references "distribution" and "reproduction," which does not clearly include streaming.

There is some room to debate whether felony-level penalties (up to 10 years imprisonment) are too harsh for any intellectual property offense such as this or whether there are legitimate reasons to treat streaming different than other methods of distribution and reproduction.  However, asking Congress to clarify an unclear law is generally a reasonable request.
The problem comes from the fact that, rather than just make that simple, straight-forward recommendation, the Administration has chosen to cloak their request in cryptic language that makes it unclear exactly what it is that they are asking for.  The White Paper reads as follows:

It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work. Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.

The most troubling phrase is "infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances."  If Congress acts on this, the language of the bill will have to be closely studied to determine exactly what activities fall into the category of "other similar new technology" and exactly what are the "appropriate circumstances."

Intellectual Property Brief called this recommendation "the biggest eyebrow raiser in this document."  They suggest that whether streaming is a method of distribution or merely a performance is a legal question that has not been resolved by the courts and the Administration's attempt to change the law to fit their interpretation is an attempt "to circumvent that question."  Additionally, they are concerned that the ambiguous phrasing will cast too wide a net:

The two sections that stand out as real wild cards here however are “in appropriate circumstances,” and “other similar new technology.” “Appropriate circumstances” raises an entire host of questions regarding what types of streams would carry felony penalties, not to mention questions about who would actually incur liability for a particular stream. Would liability be limited to the host itself, or would embedding the infringing stream also qualify? Likewise, “similar new technology” is completely ambiguous in its scope, and comes across as a catch-all grab to avoid the need for analyzing the infringement impact of future technologies.

Determining exactly what "similar new technology" any new law will reference is essential.  There are enormous differences between punishments for felony copyright infringement and misdemeanor copyright infringement.

Felony copyright infringement (18 U.S.C. §§ 2319(b); 17 U.S.C. § 506(a)), by a first-time offender, "for purposes of commercial advantage or private financial gain," for the willful, unauthorized "reproduction or distribution" of copyrighted works, with a retail value of more than $2,500 is generally punishable by imprisonment of up to 5 years and a $250,000 fine.  It is slightly less if not done for a private financial gain and significantly more if the defendant is a repeat offender (the imprisonment doubles to a maximum of 10 years.)

Penalties for a misdemeanor offense are much less harsh.  A defendant is generally guilty of a misdemeanor violation if he violated intellectual property rights other than those of reproduction or distribution (or if other elements of 17 U.S.C. § 506(a) are not satisfied.)  Misdemeanor copyright only incurs a maximum imprisonment of one year and a $100,000 fine.

A person utilizing a technology that is borderline infringement needs some ability to predict the potential consequences if he miscalculates.  That is why I can live with Congress clarifying whether streaming is properly classified as a felony or a misdemeanor (hopefully after a meaningful substantive debate.)  However, I can not live with the inclusion of a catch-all phrase such as "similar new technology" which would make the law less clear and less predictable.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.

Part 1 & 2 Expert Analysis of Copyright White Paper Below:
Obama Proposes Harsh New Copyright Laws For Internet
White House Seeks to Wiretap Suspected Copyright Infringers

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Can The Law Treat A Blogger Differently Than A Print Journalist?

Screenshot of the Cutler Files

David Makarewicz, Contributing Writer
Activist Post

The last few weeks have seen websites and blogs forced to fight back against copyright bullies, frivolous lawsuits and the United States Government.  Now, in Maine, a blogger has been forced to use the First and Fourteenth Amendments to the Constitution to fight back against the State's attempt to use its election laws to penalize him for anonymous posts he made in criticism of a political candidate.

This case raises important issues surrounding whether the law can apply different standards to print and online journalists, as well as whether a blogger has the right to post political criticism anonymously.

The issues arose during last year's election cycle.  While working on the gubernatorial campaign of candidate Rosa Scarcelli, Dennis Bailey created a blog called the Cutler Files, which launched in August 2010.  With the help of Scarcelli and her husband, Bailey used the blog to anonymously launch political attacks on Eliot Cutler, the Independent candidate for governor.

Bailey used the Cutler Files to publish a series of pages urging people to vote against Cutler for reasons ranging from Cutler's "elite private school" upbringing to hints that Cutler's incompetence as government manager "may have led to the deaths of 39 people."

Before the November election, Culter's campaign discovered the site and filed a complaint with the State Ethics Commission, claiming that the blog violated Maine election law as an "expenditure" made on behalf of a candidate that failed to disclose its publishers or state whether or not the blog was authorized by a candidate.

The Commission launched an investigation that led to the assessment of a $200 fine against Bailey for the disclosure violations.  Bailey challenged the decision, but on January 31, 2011, the Maine Commission on Governmental Ethics and Election Practices confirmed its finding that Bailey violated Maine election law and ordered him to pay the fine (copy of decision here).

The Commission found that Bailey violated the law by (a) failing to include his name and address on the website, and (b) failing to include a disclosure on his website that said the site was "not authorized by a candidate."  Additionally, even though Bailey paid less than $100 for the site, which is below the normal reporting threshold, the Commission found that the fact that the site received more than 30,000 page requests in about a month made the site a valuable enough asset to trigger the expenditure requirements.

The Maine Civil Liberties Union ("MCLU") has filed suit on behalf of Bailey, challenging the constitutionality of Maine's election laws as applied to Bailey.  The MCLU released a statement, arguing that fining a blogger for publishing information that the mainstream media was ignoring violates the Constitution.  “Political speech is the heart of the First Amendment,” said MCLU Legal Director Zachary Heiden.  “If the right to free speech means anything, it means that people will not be punished for criticizing candidates or speaking out about political ideas.”

Several Supreme Court cases have held that anonymous political speech is typically protected by the First Amendment.  Thus, a law that penalizes a publisher for failing to provide his name may be on a collision course with the Constitution.

In addition to violating the First Amendment, the MCLU argues that penalizing a blogger for falling short of the expenditure requirements may also violate the Fourteenth Amendment Equal Protection clause by not exempting a blog under Maine's statutory "news story exemption."  Maine law requires a disclaimer only when an "expenditure" is made.  However, 21-A M.R.S.A §1012(3)(B)(1) states that the term "expenditure" does not include:

Any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication, unless the facilities are owned or controlled by any political party, political committee, candidate or candidate's immediate family;

The MCLU claims that bloggers and other websites are not being afforded equal protection of the law because Maine, has written and applied the law to electronic journalists differently than it does to print journalists.  “Maine law has simply not kept up with new technology,” said Heiden.  “Many of us get our news from the internet, and there is no good reason to treat political speech on the internet differently from political speech on television or on the radio.”

The Comission disagreed and found that this exemption does not apply to the Cutler Files blog because the site was only dedicated to a single topic and was only online for a short period of time.  However, the Commission does not articulate why the scope or duration of the publication justifies applying the law differently to bloggers than they do to traditional media.  Maine's interpretation of the exemption is on even shakier ground in light of the fact that a similar exemption has been interpreted by the Federal Elections Commission to apply to websites and other Internet publications as well as print media.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs.  Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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