Electronic Frontier Foundation: Oppose Criminal Streaming Bill in Senate

The above YouTube video had over 500K views

The EFF is organizing a letter writing campaign to the US Senate - to use the letter tool, visit here

The EFF's take:

Oppose Congress' Criminal Streaming Bill


S. 978 is a reckless attempt to attack online streaming by focusing on the "unlawful public performance" area of copyright law. By increasing the criminal penalties for certain online public performances, the bill will impose a chilling effect around the posting and creation of online video. Moreover, it will hamper the pace of innovation as users, websites, and investors cope with the uncertainty of running afoul of one of the more vague sections of copyright law. Act now and tell your Senators to oppose this shortsighted bill!

Under certain conditions, an "unlawful public performance" of a copyrighted work is already a crime. But this bill targets online streaming in an effort to give the government more enforcement power to bear—particularly against websites that the entertainment industry believes to be threatening.

Techdirt reports on YouTube protests here

Text of the bill below:

112th CONGRESS


1st Session
S. 978
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
--------------------------------------------------------------------------------

IN THE SENATE OF THE UNITED STATES

May 12, 2011
Ms. Klobuchar (for herself, Mr. Cornyn, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
----------------------------------------------------------------------------

A BILL
To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Criminal infringement of a copyright.

(a) Amendments to section 2319 of title 18.—Section 2319 of title 18, United States Code, is amended—

(1) in subsection (b)—

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B) by inserting after paragraph (1) the following:

“(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if—

“(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
“(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
“(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;”; and

(2) in subsection (f), by striking paragraph (2) and inserting the following:
“(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;”.

(b) Amendment to section 506 of title 17.—Section 506(a) of title 17, United States Code, is amended—

(1) in paragraph (1)(C), by inserting “or public performance” after “distribution” the first place it appears; and

(2) in paragraph (3)—

(A) in subparagraph (A), by inserting “or public performance” after “unauthorized distribution”; and

(B) in subparagraph (B), by inserting “or public performance” after “distribution”.

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Fair Use Fridays: Columbia Pictures Faking Copyright Infringements To Promote Girl With a Dragon Tattoo?

This YouTube video is made to appear as if it were created by a pirate cameraman inside a movie theater. Mashable believes that SONY/ Columbia Pictures has faked the copyright infringement as part of a viral marketing campaign. Mashable's take here.

So a copyright owner fakes an infringement of its own work to make the movie cool to kids who prefer to watch pirated content? Does it help the analysis if the movie is a about a young female hacker?



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Music Copyright PSA

Copyright PSA: interviews with music industry execs about music filesharing, illegal downloads, how musicians make money, watch a guy get fired because of Limewire.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Copyright PSA From A Talented Filmmaker

A very touching Copyright PSA from Krista Dzialoszynski.


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United States Pirate Party Platform - Abolish the DMCA!

Logo of the United States Pirate Party
(courtesy Wikipedia)

To learn about joining the United States Pirate Party, go here.

Platform (courtesy Wikipedia)

The Pirate Party's platform centers around issues of intellectual property. "Like its international counterparts, the USPP’s main practical concerns are digital intellectual property and privacy laws—specifically, the abolition of a 1998 digital U.S. copyright law, the reduction of copyrights to 14 years (from 95 years after publication, or 70 years after the author’s death), and the expiration of patents that don’t result in significant progress within four years (as opposed to 20 years)."[3]

Reform of TrademarkTrademarks are abused around the world, in that they contain elements which are protected by either copyright or patent. A single protection for trademarks should exist, and fair use provisions made as with copyright. Trademarks should also not appear as the central issue on any dispute not arising from fraud.

Abolition of Digital Rights ManagementAll DRM and similar schemes do are to encourage people to find ways to prevent loss by circumvention. DRM is the key issue in the DMCA, and the chief reason that our population is now breaking the law en masse. DRM itself also inhibits the rights of artists to have their works experienced in as close to a live act as possible.

Right to PrivacyRegulatory bodies are, by their very nature, governing. They should therefore be prohibited from interfering in a person's private affairs. However, people should remember that their private affairs should remain private. Passwords, encryption, and other forms of electronic privacy should be afforded the same privileges as sealed envelopes.

Right to Government TransparencyThe population should at all times understand what a governing body is doing, with or to whom it is doing these things, and for what reasons. Though there is a need for national security for so long as there are enemies outside of our borders, there should never be any issue with ordinary citizens who need information. Likewise, the responsibility of citizens is to ensure that information which is of a sensitive nature is handled in a sensitive manner, so that it does not fall into the hands of those who would misuse such information to harm human life.

Reform of CopyrightCopyright is flagrantly abused around the world, has an unreasonable term length, and is used to prevent, rather than promote, innovation. This is directly counter to its stated intent in the beginning, of protecting authors' works. Additionally, the right of use should never be in question; merely the right to be credited. The term should be reverted to the 14 year term of the Copyright Act of 1790, with a right to renew for 14 additional years, at most.

Right to AssemblePeaceful assembly is guaranteed by our Constitutional First Amendment, just as free speech and free press is. Permits to protest should only be necessary if protests are planning to be disruptive (marching down streets, etc.). Police should not have a right to—though they are currently not prohibited from—disrupting the exercise of the expression of unpopular free speech.

This also covers community organization, where the political and other needs of a community sometimes requires localized political activism. People need to be able to know that what they believe can be supported; and they need to know that what they believe can be correct—or corrected.

Reform of PatentPatent is abused extensively around the world, has become the chief legal means to suppress innovation, and is largely to blame for stymieing technological progress. The practice of shelving a patent (failing to develop a patented idea which competes with one's own ideas instead of developing both and allowing innovation to spring from them) is abhorrent, and needs to be curtailed within the law. Patents which fail to be developed or have significant progress in any four-year term should be unenforceable.

Right to Free PressSpeech is protected under our Constitution, even unpopular speech, though action carries with it consequences. However, recent erosion of the First Amendment by inattentive lawmakers has led to a suppressive ideology that endangers journalistic freedoms (a necessary freedom in order to keep governments, political parties, and every other organization honest).

Underscored by recent events in St. Paul, reporters who are arrested by mistake for being in an area to report the news should have all charges summarily dismissed unless they were in fact doing damage or harm. This should be a standing policy in all city governments. Reporters form a necessary part of our government process, in bringing truth to the public.

News agencies which seek to misreport the news cannot be trusted to serve the best interests of the people, but there is a difference between news and entertainment. News agencies should have the freedom to decide which is which. However, news agencies should also be restricted from becoming the mouthpieces of special interest. One of the major issues is the limitation of small media outlets. Big media should not control 80% of the market; there should be a limit to the amount of the market that large networks control in any area.

Rejection of the Concept of Copyright infringement or "Online Piracy"Pirate Party Members hold the idea that sharing anything online is piracy is absurd on its face. Some say that actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case of this viewpoint is the freedom to act. Members would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to "raid" the law and "carry away" (repeal) laws which do not serve those on their metaphorical boat. The trick of it is: we're all in the same boat. It is in service to those on our boat (the Earth) that we aim to help.

Members are not willing to accept that file sharing should be banned (and will take steps, once party members are in office, to ensure that any laws in this regard are adamantly opposed, since in their perspective technology isn't the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

Abolition of the Digital Millennium Copyright Act and related subsequent provisions within copyright lawThe Digital Millennium Copyright Act of 1998 provided for legal repercussions for circumvention of copy protection, as well as making backup copies of any media illegal. This act has resulted in the intimidation, prosecution, and/or conviction of tens of thousands of people in our country—people who are otherwise law-abiding and who are not interested in being labeled thieves or crooks for doing what the internet was intended to do: share ideas. This is therefore a First Amendment issue, being freedom of expression, and we call for a repeal of this highly illogical and vertically-oriented law on the grounds that it is simply a bad law.




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Piracy and Copyright Infringement: Department of Behavioral Investigation Report

A radical solution to the problem of piracy. More from the Department of Behavioral Investigation here.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Criminal Copyright Infringement - Counsel Must Know of Statute of Limitations Defenses To Enter Plea Agreement

 In United States v. Boyd, 2011 WL 285196 (2d Cir. Jan. 31, 2011), the Second Circuit vacated the district court's decision that a defendant did not have ineffective assistance of counsel in negotiating a criminal copyright infringement plea agreement.   The Defendant tried to vacate his guiltly plea by claiming that his counsel was unware of the five-year statute of limitations applicable to criminal copyright infringement claims.

United States v Boyd

18 U.S.C. § 2319. Criminal infringement of a copyright

(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1)(A) of title 17—
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506 (a)(1)(B) of title 17—
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
(d) Any person who commits an offense under section 506 (a)(1)(C) of title 17—
(1) shall be imprisoned not more than 3 years, fined under this title, or both;
(2) shall be imprisoned not more than 5 years, fined under this title, or both, if the offense was committed for purposes of commercial advantage or private financial gain;
(3) shall be imprisoned not more than 6 years, fined under this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(4) shall be imprisoned not more than 10 years, fined under this title, or both, if the offense is a felony and is a second or subsequent offense under paragraph (2).
(e) (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include—
(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(f) As used in this section—
(1) the terms “phonorecord” and “copies” have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17;
(2) the terms “reproduction” and “distribution” refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;
(3) the term “financial gain” has the meaning given the term in section 101 of title 17; and
(4) the term “work being prepared for commercial distribution” has the meaning given the term in section 506 (a) of title 17.


















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Criminal Copyright Infringement: Rabidly Neurotic Music "Pirate" Acquitted

I recently posted about the use of the term "music piracy" in a criminal copyright infringement proceeding here.

The Tech Dirt Blog reports that the defendant Adil Cassim was acquitted by the jury and joins in the debate about the term "music piracy".

Cassim was allegedly part of "Rabid Neurosis" - group that allegedly ripped sound recordings prerelease.  More from Billboard.biz here.

Why Did Congress Write the Copyright Act's Criminal Provisions Without Using the Words "Music Piracy"?

Daniel Defoe, Author of Robinson Crusoe - Attacked By Pirates Since 1703

Image thanks to Wikipedia

I don't practice criminal law.  It is truly astonishing to see the poetic license that judges let prosecutors use to impose criminal penalties on defendants for crimes that don't exist.   Here's a case of a kid being prosecuted for "music piracy" - a crime not found in the Copyright Act, and specifically not in 17 U.S.C. Section 506 "Criminal Infringement".  U.S. v. Cassim, 2010 WL 933943, 4 (S.D.Tex. March 12, 2010).  Here is the judge's denial of defendant's motion in limine to exclude use of the term "music piracy".

IV. MOTION IN LIMINE REGARDING THE TERM “MUSIC PIRACY”


Defendants seeks to exclude any use of the terms “music piracy” from the jury. They argue that this term is not evidentiary, has no probative value, and is highly inflammatory such that it will create undue prejudice. The Government, in response, argues that this term would be highly probative of the Defendants' knowledge of the unlawful object of the conspiracy. The Court finds that, because this term was and is commonly used to refer to the conduct in question, it will be difficult for witnesses and lawyers to generate an adequate substitute during questioning. It need not, therefore, be entirely excluded. However, the Court invites counsel for Defendants to suggest any possible limiting instructions which, if offered to the jury, might mitigate any possible prejudice that the term might create.

I have litigated many copyright infringement cases without the need to refer to the word "piracy" though as a civil plaintiff it is a nice synonym referring to a person who makes multiple exact duplicates, rather than someone who borrowed portions of a copyrighted work.  But it certainly is not necessary in a civil proceeding and would appear to me to be highly improper to use in a criminal proceeding.


From Wikipedia's definition of "Copyright Infringement"

Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.


For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy (an early reference was made by Daniel Defoe in 1703 when he said of his novel True-born Englishman : "Its being Printed again and again, by Pyrates"). The practice of labeling the act of infringement as "piracy" actually predates copyright itself. Even prior to the 1709 enactment of the Statute of Anne, generally recognized as the first copyright law, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.

The legal basis for this usage dates from the same era, and has been consistently applied until the present time. Critics of the use of the term "piracy" to describe such practices contend that it is pejorative and unfairly equates copyright infringement with more sinister activity, though courts often hold that under law the two terms are interchangeable.

Let's get the prosecutor a thesaurus, call the crime by the name Congress selected in drafting 17 U.S.C. Section 506 and let's leave the pirate stuff to Johnny Depp.

Illegal Downloading of Software: Czech Cracker Leeches Warez Gets 30

In U.S. v. Klimecek, 2009 WL 102128 (7th Cir. January 15, 2009), the Seventh Circuit upheld a 30-month sentence for a member of a warez group who downloaded Czech movies and music. The decision does not state that any of these works were registered with the Copyright Office. Italics below are from the decision:

He was indicted under 17 U.S.C. § 506(a)(2) and 18 U.S.C. § 2319(c)(1) for willfully infringing copyrights by reproducing or distributing during a 180-day period at least ten copies of one or more copyrighted works with a retail value of more than $2500. He was further charged under 17 U.S.C. § 506(a)(1) and 18 U.S.C. § 2319(b)(1) because the purpose of his infringement was for private financial gain.

Klimecek pleaded guilty. [Rec. Tab 9.] During the plea colloquy, he declared that he bought and installed hardware and software to set up a computer server and paid half of the monthly service charges to connect the server to the Internet. [Rec. Tabs 3-4.] In exchange, Klimecek was to obtain access to Czech movies and music. [Rec. Tab 6.] He admitted that he knew that Internet users from around the world were accessing the server to upload and download copyrighted works. [Rec. Tab 4.] The defendant also stated that during a 180-day period he caused at least ten or more copies of one or more copyrighted items to be uploaded to the server and thus made available for unauthorized download by Internet users. [Rec. Tab 5.] Klimecek admitted that the retail value of these copyrighted materials exceeded $2500. [Rec. Tabs 6-8.]

Even with the guilty plea, Klimecek got thirty months of prison under the Sentencing Guidelines. The court was not sympathetic to his arguments that he was a minor player and found that under the guidelines his conduct did not warrant a further downward departure.

The court also rejected the argument that the sentence was unreasonable. He had no criminal background, made next to no money on the scheme, and claimed he was not particularly sophisticated and thought he was just playing around with some friends.

Be very careful out there. Under the statute, a good chunk of the high-school and college population of the United States would probably qualify for some very hard time. Until the grandchildren of federal judges start getting hit with these sentences, they will continue to appear "reasonable" to the federal judiciary. Housing, feeding and guarding Klimecek for thirty months is an egregious waste of tax dollars and entirely disproportionate to the offense, which could largely be remedied (and give the copyright owners greater financial benefits) through painful but effective civil remedies or restitutionary penalties. Now that Klimecek will spend probably a couple of years in prison, there is little chance he'll be able to pay the level of restitution to the copyright owners that he would have been able to pay if he'd been permitted to work.

A suspended sentence conditioned on restitution would have been the economically prudent and just solution. Just because there is a stupid law on the books does not mean the prosecutor has to ask for a stupid sentence. Cf. Hugo, Victor, Les Miserables. And just because a law is on the books does not mean that the federal judiciary should abandon reason in favor of the Sentencing Guidelines.