Annals of criminalization, part 2,038: “performing” copyrighted material

by Walter Olson on July 2, 2011

The Senate Judiciary Committee has unanimously approved S. 978, a bill that would raise from a misdemeanor to a felony the unauthorized performance or streaming of a copyrighted work when the infringement takes place at least ten times and either reaps $2,500 or more in revenue, or avoids the payment of license fees whose fair market value would exceed $5,000. Mike Masnick at TechDirt thinks the bill could wind up authorizing the jailing of some persons who embed YouTube videos or post videos of themselves lip-synching hit tunes; CopyHype defends the bill and dismisses the concerns as overblown.


1 Titus 07.02.11 at 11:33 am

Without endorsing this particular law, of course, I find the performance aspect interesting. The original intellectual property laws for music only applied, of course, to performances and sheet music. Thus the controversies were all about people going to hear Beethoven and transcribing the music by ear. It’s odd to see the system come full circle like this, and as a criminal law to boot.

2 Terry Hart 07.02.11 at 12:19 pm

Titus- I do want to point out that the conduct described in this bill is already a violation of criminal copyright law and has carried the possibility of jail time since 1897. All this bill does is make it a felony, like reproduction and distribution, instead of a misdemeanor – and only for electronic performances, where the difference between downloading and streaming is more legal than technical.

3 VMS 07.02.11 at 2:34 pm

When someone posts a video to You Tube and most other sites, they have a choice whether or not to grant permission to embed.
As an example, the message received from You Tube when the permission to embed has been denied says: “This video contains content from XYZ. It is restricted from playback on certain sites. Watch on You Tube [clickable link].”

A compelling argument may be made that if the poster chose to allow embedding, rather than disabling it, he is giving implied consent for someone on another site to do so. If the poster made a mistake and originally allowed embedding when he did not intend to do so, he can easily rectify that mistake by disabling the embedding from the original post. Disabling the embedding can be selective to all or some sites.

In any event, there is no infringement by someone posting a link to the original video. So, although no court (to my knowledge) has ruled on this issue, I would venture to guess that allowing embedding makes any embedding of the video permissive, and an implicit license in the copyright for past use.

4 Hugo S. Cunningham 07.02.11 at 6:46 pm

A reasonable compromise would restrict nuclear weapons like this to the original Constitutional term of fourteen years from publication. That is plenty of time for publishers and musicians to make the bulk of their profit, while protecting the creative commons from copyright trolls.

5 GregS 07.04.11 at 3:51 pm

Good sweet God. The United States is 14 trillion dollars in debt and has future liabilities north of $100 trillion, is borrowing nearly half the money it spends, is in danger of hitting the debt ceiling in a month, is fighting three wars, and has an economy that seems to be permanently in the toilet, and the Senate thinks that making lip-synching on YouTube a felony is such a critical issue that it needs addressing now? There really is such a thing as being too stupid to live.

6 uptofreedom 07.08.11 at 10:41 am

hmmm, the death of cover bands?

Comments on this entry are closed.