“Tolling the Stream” (Be Jailed for Streaming?) by UltraDavid

By on June 29, 2011 at 6:27 pm

David “UltraDavid” Graham (for Shoryuken.com) explains why, if bill S.978 passes, you could be jailed for streaming video games, or even uploading them to youtube;

The United States Senate is in the process of considering bill S.978, a bill “To amend the criminal penalty provision for criminal infringement of a copyright,” or as you might know it, the Anti-Streaming Bill.  There’s been some discussion about what it really means and how it would affect stuff we care about, so I’d like to clear everything up.  To be blunt, if passed it would pretty significantly reconfigure American copyright law in ways that could honestly really hurt internet culture in general and our video game communities specifically.

So what does it do?  Its stated purpose is to attack the online streaming of copyrighted works, specifically films and live television.  It tries to do this by criminalizing some electronically transmitted (read: internet) public performances of copyrighted works.

Background: the law is split into criminal law and civil law.  In (very) short, criminal is for things designated as crimes (like murder and theft), can involve jail time, and is handled by the government, whereas civil law covers everything else, doesn’t involve the risk of jail, and can only be sued over by whatever entity actually got screwed.  Copyright law has both criminal and civil law sides, but with a few significant exceptions copyright mostly sticks to civil law in practice.  That means that only the copyright owner can sue you for infringement, and the worst thing that can usually happen is that you either get a cease and desist letter and stop what you’re doing or you  pay the copyright owner some dough.  While that can be really costly (up to $150k per infringement, although that’s very uncommon), you can’t get sent to jail.

More background: there are four major exclusive rights granted to copyright holders, including the exclusive rights to reproduce a copyrighted work, to distribute it, to modify it, and to perform or display it.  Streaming a copyrighted video game audiovisual work can involve all four of those rights, but most obviously it’s a performance of that work transmitted to members of the online  public. Infringements of the performance right have only ever been handled by civil law, that is, subject only to getting shut down or to paying the copyright owner some money; there’s never ever been a criminal penalty for an unlicensed  performance of a copyrighted work.  This bill breaks with all previous copyright history and tradition by criminalizing some unauthorized performances.  Here’s the text: http://t.co/eAgrD96.

According to the bill as it’s currently written, if you engage in “public performances by electronic means” 10 or more times over a 180 day period, and if either the total economic value of those performances exceeds $2500 or the cost of getting the copyright holder’s permission to perform exceeds $5000, then you can potentially get fined and put in jail for 5 years.  Jail.  FIVE YEARS.

Just to hit you over the head with this, that means that if you stream a game like Street Fighter 4 or Starcraft 2 (or a movie or a song etc) only 10 or more times in a full half year, and if you make a bit of money doing it, you either need to have a license from Capcom or Blizzard etc or you risk going to jail.

Amusingly slash horrifyingly enough, it gets worse.  The wording of this bill is so vague that “performance” could count for a crap-ton of what we who understand the internet would consider very different things.  The offense is defined super broadly: “public performance by electronic means.”  That includes live streaming of copyrighted audiovisual works, of course, but it almost certainly also includes recorded YouTube videos of copyrighted audiovisual works, whether they be match vids, game footage/live shot hybrids, movies, TV shows, music, and so on.  Going off other legal precedent, it might even cover embedding an infringing YouTube vid and videos of kids lip syncing to music.

In essence, a bill intended to limit the unauthorized live streaming of films and TV could result in potential jail time for a lot of people doing very different things.  While the bill’s sponsors might not have known how wide-ranging its effect could be at first, they’ve been confronted with that since the text was released and they show no signs of pulling it back.

What about the monetary limits?  Well, they actually aren’t that high.  If you don’t think our major streamers, casters, and uploaders make $2500 over a full half a year, you’re crazy.  Keep in mind, the wording of the bill is “the total economic value of such public performances to the infringer or to the copyright owner.”  Total, meaning revenue from live streaming, plus revenue for replays, plus compensation by a tournament for coming to stream in the first place, and so on.  And economic value, as in not net profit but just the amount of revenue coming in.

Because almost every use of an audiovisual work online can be considered a public performance, this might drastically change how people behave online.  No longer is the penalty for uploading infringing videos just getting shut down or having to pay the copyright owner.  If the vids become popular, you might go to jail.

Now, obviously some companies, including video game publishers like Capcom and Blizzard, tend to take a hands-off approach to the constant unauthorized streams and replays our scenes pump out.  So why worry?  Surely they wouldn’t send us to jail.

But that’s only in a world where the performance right is merely a civil law provision, where the only ones who can bust infringers are copyright owners.  Jamming the performance right into criminal law means that the government gets involved and gets to decide whether to bring charges on its own.  Whereas for now video game publishers can (and usually do) let infringing live streams and replays slide, in the future the government might be able to bring criminal charges regardless of whether the copyright holder says to.  In practice the government tends not to go after infringers unless notified by copyright holders, but if it wants to it can go after infringers anyway.

I don’t want to be too alarmist here.  It strikes me as very unlikely that the government would take the time and money to put someone in jail for streaming a Marvel vs Capcom 3 tournament.  But since this would be a totally new thing, I can’t say for sure; I don’t think anyone can.  I also don’t think it’s a great idea to ever play Russian roulette, regardless of whether the gun has a hundred chambers or ten thousand.

I think the consequences for our relationship with video game copyright holders are obvious.  It would no longer be good enough that Capcom takes a hands off approach to us publicly performing their copyrighted works, because the government could still bust us if it wants.  I can’t imagine that many people would risk jail time by engaging in publicly viewable, easily findable unauthorized performances like tournament streams or popular YouTube vids.  The result might be that the only people streaming or putting up replays are those who have licenses from copyright holders explicitly allowing them to do so.

And I think that would be a disaster for our culture.  It means the gut gets slit right out of our media side, because while having a few big names and groups is great, without voluntary participation by whoever wants to be involved I feel like we’ll lose a huge portion of the vibrant, fast-moving dynamism that I love about our scenes.  Maybe we’ll be able to get permission easily, but in my personal experience it’s been anything but easy for video game copyright owners to grant licenses.

When I was writing this, one of my friends said, “Dude, but like, you’re a lawyer who practices this exact kind of law.  Aren’t you like totally stoked that pretty much every streamer and uploader ever is gonna need to pay you to get all licenses and stuff for them from Capcom and Blizzard and Microsoft and all that?”  No, that would suck.  Would I trade the viability of my community for some dollars?  EAD.

I think a good chunk of what this is about is just the old guard not understanding what’s happening nowadays.  Technology like free, instant, and relatively simple mass streaming or uploading by anyone to infinite viewers all over the world is just… really new.  And I think the entertainment industry has no idea how to approach that, so instead of taking advantage of it themselves, they’d rather make sure everyone else has a hard time coming in instead.

Companies like Capcom are starting to understand how streaming or casting tournaments and match footage can be really positive for them, but they don’t know how to do it themselves, so they let us do it instead.  But traditional film and television companies, who are the real drivers behind this bill, have even less of a clue.  It seems natural to us that if we can watch a show on live TV we should be able to watch it live on our computers too, but that’s barely even on the radar for TV companies.  The vacuum left between how we want to watch shows and how the content publishers want to give them to us has been taken up by streamers, and that makes the streamers money and the copyright owners mad.

Even worse, the people in government are so clueless as to how to approach all this that they’re letting themselves get run over by an old industry attempting to destroy or seriously harm the development of newer technologically literate communities.  They have no thought for how copyright owners can benefit from streamers rebroadcasting live TV, usually complete with ads and all, to people who don’t have TV and otherwise wouldn’t be able to see the content or the ads.  They don’t consider how video game community streamers, casters, and uploaders are making games more popular and valuable, or how they’re filling vacuums of competition and entertainment that the older entertainment companies are simply incapable of filling themselves.  They just have this knee-jerk, 2nd millennium theory of copyright and ownership that reacts very negatively to any loss of control.

This is not law yet.  Quick recap if you don’t know how a bill is passed here: one house of Congress (either the House of Representatives or the Senate) has to pass a bill, then the other house has to pass it, then the President has to sign it.  Each house has committees, or sub-groups that specialize in certain areas, that have to agree on bills before the rest of the house decides whether to actually pass it.  All that’s happened so far with this bill is that it’s been agreed to by its committee.

But the good money is on it being passed.   It enjoys bipartisan support; it was cosponsored by two Democrats and a Republican.  Its goals were identified and proposed by the Obama administration.  And if anyone in government is on the fence, it has the weight of very significant traditional entertainment industry lobbying behind it.

Tl;dr: This is not a good look.  I don’t know how to yell loud enough to the government that this is a huge mistake, but man, I really feel like we have to try. [Editor’s Note: Head over to Demand Progress to make your voice heard in just one click, you lazy bum]

David “UltraDavid” Graham wants you to understand how many rewrites this article needed before he could get through it without murder-cussing the clueless older generations who run the government and entertainment industries.  Seriously, it was… a lot.  In real life he’s an attorney with specialties in intellectual property, contracts, and internet law.  His entertainment and video game practice is based in Los Angeles but counts clients across the country.  He can be contacted on his site at www.DPGatLaw.com, by email at David@DPGatLaw.com, or by PM at UltraDavid on Shoryuken.com.

[aditional images from ProtocolSnow, Nevuh Photo, and KaraFace]