Comment by elliekelly | Hacker News Reader

Comment by elliekelly | Hacker News Reader

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That's what the linked press release[1] says but looking at the wording of the bill[2] I'm not so sure it's that cut and dry:

> It shall be unlawful to will-fully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that...

The term "private financial gain" typically includes an individual receiving anything of value. I agree it doesn't come after the consumers of illegally streamed content but I don't think it's fair to say it only targets for-profit platforms. And it's certainly much broader than targeting "criminal organizations" as the linked (not HN) headline wrongly suggests. Someone uploading protected content in exchange for reddit gold could easily fall within this definition of criminal conduct. People who "trade" files with one another might fall within it, too. I think the linked press release is intentionally downplaying the scope.

[1] "The Protecting Lawful Streaming Act would apply only to commercial, for-profit streaming piracy services. The law will not sweep in normal practices by online service providers, good faith business disputes, noncommercial activities, or in any way impact individuals who access pirated streams or unwittingly stream unauthorized copies of copyrighted works. Individuals who might use pirate streaming services will not be affected."

[2]https://www.tillis.senate.gov/services/files/A30B0C08-FB97-4...

Yeah, I think people in this thread are really underestimating the ability for courts to over-apply laws that talk about commercial activity. If growing food on your own property for personal consumption can be "interstate commerce", then really any human activity can be justified as "commercial advantage or private financial gain".

I'd be curious to see if another lawyer could turn all of this on the heads of the 'digital market' as a whole.

> and for purposes of commercial advantage or private financial gain,

What if someone starts a streaming service where they get paid in 'tradable' items in a 3rd party game, where the EULA of said game makes it clear that that such items have no monetary value?

This really reminds me of attempts to define a non-commercial open source license.

Basically, there aren't any in common use and no non-commercial OSS license was ever approved by OSI as no one could come up with a bullet proof way of defining what is and what is not non-commercial use for free software.

And I'm afraid the same lack of clear definition can get misused here as a result.

You quoted the preamble but didn't quote the rest of the text: [...]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.

Emphasis are mine. It's clear to me through reading this that a service/platform that specifically aims and is marketed as streaming pirating content will suffer the consequences here.

I envy your gift of statutory clarity. It isn't clear to me. And I can't imagine I'm the only lawyer who can spot the squishy bits of this legislation ripe for manipulation.

The three paragraphs you've quoted are "or" elements. A person need only violate one of the three to be criminally liable. Paragraph 2 is broad enough to include just about anything.

Since you're a lawyer, please clarify for me one part so that I can understand. The paragraphs are presented as:

1 - condition 1;

2 - condition 2; or

3 - condition 3.

Does this mean that condition 1 should be applied all the time (1 and 2 _or_ 1 and 3) or (1 or 2 or 3) in order to be liable?

As the other person commented, I read it as 1 or 2 or 3 though I'll admit this bill has exceptionally poor drafting. Typically to avoid that sort of confusion the "chapeau" would say something like "it shall be unlawful for a person to do one or more of the following" or "it shall be unlawful for a person to do (all of) the following".

You can see an example of drafting for (1 and 2) or 3 in paragraph 4 of the definitions section to give you a better idea of how the language and structure would differ in this section if it were intended to be read as (1 and 2) or (1 and 3).

1 or 2 or 3.

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