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Sounds like if I, e.g. have a podcast where I play and review songs (without permission), I can be charged with a felony if I, say, take paid ads on the podcast.

Perhaps simply a monetized streaming channel where I dance to the current hits is enough to put me in jail... it’s certainly seems enough to at least put me on trial.

I think you have to wonder: what’s insufficient about the civil and criminal laws? What is the current serious problem with streaming that this very strong law is needed to stamp it out?

To me it seems inevitable that it will be applied much more strongly than what you are thinking. “Purpose”, “intentionally”, “significant”, “primarily” can be, and therefore probably will be, argued to have wide meanings.

> has no commercially significant purpose or use other than to publicly perform works protected under title 17

That seems like a thing that will be litigated. Who knows what it will mean after it’s been through the ringer of the US court system.

It doesn't have to meet that criterion to fit the definition. It could meet clause 1 or (more likely on GP's examples) clause 3 instead).

What's weird is that the bill doesn't have an or conjunction between clause 1 and 2 lol.

That's not weird. The bill says "a transmission service that (1); (2); or (3)". That's just how English conjunctions work when you're joining more than two things.

Yeah, fair enough. I'm just used to seeing most legal codes have a conjunction between each element of a list for clarity, or a description before the list whether each element needs to be satisfied or just one of them.

Yes, if you are the one distributing the podcast directly on a platform you control and the platform is primarily to distribute music you don't own the copyright to, it doesn't matter if you happen to be dancing while the music is playing, that is copyright infringement and under this law would be criminal.

You can always have a podcast that reviews songs, and people have been reviewing songs for as long as there has been music without the need to play substantial portions of the song itself. You just can't be the one distributing songs as a commercial enterprise and then saying that because there's a video of you dancing that makes copyright infringement acceptable.

"Vocal coach reacts!"

I, for one, will be glad if these go away. (Plus, get them out of my feed, youtube. I don't watch them.)

Apparently they're so successful that other people are doing it now. I saw someone totally unrelated to music reacting to amateur music songs.

Well those videos on Youtube won't be impacted by this. This law doesn't go after individuals who upload infringing content, rather it goes after the platform itself. It's unlikely Youtube will be affected by it.

While that may indeed be the intent, an aggressive prosecutor could make a strong argument that individual streamers dancing or singing unlicensed karaoke are providing a digital service (the word "platform" never appears in the text) that "is intentionally marketed by or at the direction of that person to promote its use in publicly performing works." Which would now be a freaking felony.

Going by the quoted portion of the bill up thread, "platform" doesn't appear in the relevant portions text but neither does "digital service" - it says "digital transmission service".

I am not certain whether that makes a difference.

From the definitions section of the bill as linked above:

> the term ‘digital transmission service’ means a service that has the primary purpose of publicly performing works by digital transmission;

So it probably makes less of a difference than we might hope.

A YouTube channel can be considered a 'digital service'.

I don't see 'platform' in the text, where did you get that from?

> This law doesn't go after individuals who upload infringing content, rather it goes after the platform itself.

Be careful. That's not what the law actually says. It doesn't mention "platform".

The term used is "digital transmission service", which is defined in terms of the undefined term "service". Perhaps there is some established narrow legal definition of the term "service" that will keep this law from being abused? Let's all hope so!

I would read "digital transmission service" as a service offering digital transmission, but that's not what the bill says. It says "the term ‘digital transmission service’ means a service that has the primary purpose of publicly performing works by digital transmission;" which to my eyes does not clearly restrict it to platforms as opposed to, at, a YouTube channel. Unless, as you say, there is a restriction somewhere unspecified on what can be meant by "service".

> that is copyright infringement and under this law would be criminal.

Whoa. This is crazy. Laws are stupid in that they can't be custom tailored for the situation of the accusation at hand. If I come out with a 0-day that allows me to bypass encryption of say Netflix that allows me a pristine copy of a video source that I then later stream on a paid-for streaming platform, then yes, that would be stealing. Therefore, criminal.

However, if you're some YT streamer, podcaster, etc that happens to receive money from ad share revenue and you have a segment with some copyrighted music in the background, then that is a far far way off from a criminal act. Civil maybe, but come on.

Laws need to be written so the punishment fits the crime/offense.

> that would be stealing

No, that would be copyright infringement, which is not theft.

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

If it's a peer-to-peer streaming service where media consumers also serve media to other users, then the argument could be made that users themselves are providing the "digital transmission service".

There may not even be an identifiable, centralized "platform".

> has no commercially significant purpose or use other than to publicly perform works protected

This seems tailored to kill PopcornTime.

You could use PopcornTime for showing copyright-free videos, they exist

The fact that one has to point out that they exist at all, is indicative of how popular or significant they are on that platform.

Or how popular they are NOT depending on your viewpoint

That's why it says commercially significant.

Isn't PopcornTime free software, which means it has no commercially significant anything? Or is it meant to be read has no (commercially significant purpose) or (use)?

PopcornTime definitely has a commercially significant purpose, even if it’s free: it provides unrestricted access to large amounts of copyrighted material that has undisputed commercial value.

But is that "digital transmission service" run "for purposes of commercial advantage or private financial gain"? I agree with your theory, but not sure why you removed the qualifier from your theory. This seems more targeted to PopcornTime than bittorrent

Getting media for free is "private financial gain".

how so? you don't gain financially by receiving free media in any form, at best you avoid a monetary cost.

You're getting something that you'd otherwise have to pay for. That is legally considered a financial gain, even if it doesn't hold up to pedantic linguistic scrutiny. Legal definitions are often different to everyday language.

In Germany that is already the case. Streaming is "ok" here for the consumer whereas torrenting is illegal and practically dead by now. The legal argument is that you are distributor when using peer to peer. Under German law it doesn't matter if that is done for profit or not.

Could this be used to make torrenting a felony then? In the case that you're sharing a commercial work, obviously. You sharing a torrent is essentially you providing a service (being in the swarm, sending chunks), which exists entirely and only to infringe one or several copyrighted works (the files in the torrent).

The prosecution might need to demonstrate that you knew you were serving copyrighted works to others.

Your defense might be that you thought you were only a user, not a dealer with intent to distribute.

And then the prosecution will enter this HN comment into evidence, proving that you knew exactly what you were doing.

Everyone seems to jump to conclusions a bit, though there's still some reason to be wary as I already see 2 ways that this would make it harder for someone to build a new streaming service.

Firstly it becomes very difficult to argue your streaming service has no 'commercially significant purpose' other than piracy when you're not making much money.

Secondly it gives the copyright enforcing industry a big amount of leverage to pressure you into doing things as failure to cooperate could easily be argued to make your platform intended for piracy.

>Firstly it becomes very difficult to argue your streaming service has no 'commercially significant purpose' other than piracy when you're not making much money.

It is a bit of a concern, but I see it less of a concern than you.

First, we're talking criminal law here, so the state has to argue their case and prove your guilt, not you have to prove your innocence.

Second, you still get 17 U.S. Code § 512 liability protection (DMCA takedown notices and resulting safe harbor) and if you can demonstrate you followed this in court, it would be a lot harder for the state to argue you deliberate did something wrong, especially if this concerns "user generated content" (harder, not impossible).

Third, you're fucked already anyway, ask Kim Dotcom (from megaupload) about it. If the government wants to come after you, it will, regardless of this law, and even regardless of whether you set foot on US soil ever.

>Secondly it gives the copyright enforcing industry a big amount of leverage to pressure you into doing things as failure to cooperate could easily be argued to make your platform intended for piracy.

Again, the law sets out what you have to do to have liability safe harbor under 17 U.S. Code § 512. If you follow that, it would be hard for the music industry to argue otherwise, and it's also not their place to sue you under this law in the first place. It's criminal law, and therefore only the state can prosecute. However, the music industry certainly would try to nudge prosecutors into bringing charges under this law, and/or bring it up in an civil proceedings to bolster their case. It could backfire for them tho, if the state refuses prosecution, then you have an argument in civil court that what you're doing was not considered illegal and the state decided you are not an illegal streaming service (or at least, that there was no sufficient evidence to make that case).

So I think it's not a great law, especially not if you want to do a (user content) streaming startup, but it's not that bad either.

I think the main issue I've got with this law is the fact that current laws already seem to cover it. It doesn't make sense to me why we needed additional criminal enforcement around, of all things, media streaming.

I'm really not a fan of how much our government bends over backwards to protect Disney's IP.

Kim Dotcom is a great example for how much protection is already enjoyed by copyright holders. It's crazy to expand that.

The other thing that really concerns me about this is how easily it could go wrong. Music, in particular, seems to be filled with legal landmines. Imagine hosting your own webpage for your band covering pop songs. Do you now have to fear federal prosecution?

Cases like this

https://variety.com/2020/music/news/katy-perry-dark-horse-re...

Terrify me for what it'll mean for media. Why? because it wasn't a clear cut "No, don't be stupid, these are totally different songs".

>The other thing that really concerns me about this is how easily it could go wrong. Music, in particular, seems to be filled with legal landmines. Imagine hosting your own webpage for your band covering pop songs. Do you now have to fear federal prosecution?

I don't see anything in the law suggesting strict liability applies, therefore the state has to also show mens rea ("guilty mind"), i.e. the act was willful (or criminally negligent). Or am I missing something?

Uh, that was about a very small bit of two songs that were very similar/identical. The notion that you can't just steal a large part a song and it'll be legal because it's not the full work is a pretty obvious one. Beyond that a ship-of-Theseus type ambiguity kicks in regarding to how much is needed to be taken for it to be thefth, as it does for most things that can be taken apart.

I guess it is worrying that the trial didn't decide if bits that small are protected or not before going on to decide if infringement happened, but I think this is mostly worrying for Katy Perry as it indicates that the hired lawyers are bad at their job.

> Kim Dotcom is a great example for how much protection is already enjoyed by copyright holders.

That was downloads. Commercial download piracy did indeed already have a lot of serious legal penalties. Commercial streaming piracy did not.

> First, we're talking criminal law here, so the state has to argue their case and prove your guilt, not you have to prove your innocence

Although factually correct, this is not how the system works in most circumstances. If someone in power believes you committed a crime based upon the current law and you get charged for that crime, fat chance you will be arguing semantics in court. You will be taking a plea deal unless you are extremely well funded.

I’m mostly wondering why we need to make these explicit laws to give more ammo to prosecutors. Is this really something that needs to be addressed now? Do we need to further criminal liability because the copyright enforcing industry can shift the expenses of policing their content onto publicly funded mechanisms?

Note that I am not a fan of overarching copyright and crazy patents as is the current US system, and think the DMCA is broken.

My opinion is that I dislike bringing up Kim as a martyr for this every time it comes around/find it somewhat damaging to the argument. The entirety of the data and all servers were hosted in the US. They had vendors in the US, they had a significant US connection and jurisdiction almost certainly applies.

It was/is relatively obvious to pretty much anyone looking in from outside that their existence was largely based upon infringement, like the equivalent of current 2020 file locker providers streamtape, streamhoe, vidlox, fastdl, mixdl, dropdl, videobin, mixdrop, mystream, abcvideo, or the past days of 2shared, 4shared, filesonic, uploadedto... You really only ever saw those links in a few places and you know what they are for, they magically stayed up for months. It isn't a "personal files" argument, they were pretty explicitly knowingly profiting off this kind of activity, especially with megavideo streaming loading every kind of malicious pop-everything ad known to humankind.

The same files/shows/movies rarely lasted more than a day or two on Mediafire or Box.

It could also kill streaming DJs and the services that support them.

If I play a DJ set over Twitch it could be argued that I'm doing it for profit because it's a form of self-promotion.

It also means that anyone who receives a DMCA take-down suit on YouTube can be accused of illicit streaming - which puts a lot of compilation creators into a legal grey area. Not to mention creators of original music who are on the wrong end of an illicit rights grab.

While the intent may be go to after pirate streaming, the reality is that aggressive lawyers can easily broaden the scope.

You (or your venue) are paying paying royalties on the songs in your DJ set.

You're not performing without the authority of the copyright owner or the law.

If I were to share a Plex server with some friends, and that Plex server were to primarily include pirated content (say, whatever we couldn’t get through other streaming services), I’m sure an argument could be made that it’s public and is therefore subject to these laws.

Would a reasonable person with technical knowledge agree that such a scenario falls under this law? No. But do you really think the RIAA isn’t going to put pressure on prosecutors to go after individuals? Do you really think they’ll allow technically-competent jurors?

I don’t trust anyone involved here. There’s no way this won’t be abused to go after average people.

Even if individuals are not prosecuted, arguably Plex the company offers a platform this bill is attempting to outlaw.

" this law should really read the text instead of reading whatever nonsense the media is spinning."

It doesn't take you more than a few hours to go over 5000 pages of text, Right?

The linked pdf is 5 pages.

It seems like irresponsible journalism to not just include the text in any article written about it.

This is a problem I have with how a LOT of legal topics are covered, Bills, lawsuits and court cases are discussed, the merits opined, but nary a complaint, brief, motion or court opinion gets linked so I can read for my damn self what the actual law as voted on says.

It’s more of a surprise when it IS linked or embedded to read than not

https://www.congress.gov/search

https://www.congress.gov/member/thomas-tillis/T000476

I've had decent results consulting this site.

The bill in question has not, as far as I can tell, been brought up for consideration yet anywhere so the only text that exists is that which is linked in the submission.

Just looking at the co-sponsors alone, I'd be worried about this legislation.

The bill has been passed. It was added into the omnibus bill as a part of negotiating between the Dems and the GOP.

I agree in principle, but you wouldn't expect court documents in particular to exist for a new piece of legislation though. In this case we would want the proposed revision to the federal code.

But is the text of that PDF the same as the text in the monster bill?

Yes, it is. You can trivially ctrl+f it to make sure.

If by 5000 pages you mean 5, you might be correct if you are a really slow reader.

The entire package that legislators are asked to vote upon is 5000 pages long. It starts on page 2539.

https://rules.house.gov/sites/democrats.rules.house.gov/file...

This makes me realize that torrenting is absolutely under attack here.

If you look at (3), an activity doesn't even need to be for commercial gain if it's "intentionally marketed," and moreover it does not need to actually perform a work to be in violation - it simply needs to be marketed as such and "offer" a service.

Which means that even an individual leeching a torrent (sending no copyrighted material in outbound packets) might arguably be in violation of the act, simply by sending out packets that advertise their membership in the network and the potential for them to upload copyrighted material.

IANAL and this would need to be tested in court. But it's dangerous ground.

So sharing a Plex library with a few pirated videos is now a felony.