Press Mention
Dec 6, 2013
Internet Policy Task Force Is (Still) Not Sending Cover Artists to Jail
Post by FMC legal intern Michelle Davis
It seems another rash of Bieber Fever is breaking out across the internet as a new “green paper” from the Department of Commerce’s Internet Policy Task Force goes public. This report [PDF], published in July, takes the position that it should be a felony to stream copyrighted works, echoing a bill introduced by Senator Amy Klobuchar (D-MN) back in 2011. Two years ago, passions were ignited with an online campaign to “Free Bieber” from prison, where he was supposedly sent for posting the cover songs on YouTube that launched his career. The too-cute-to-be-accurate campaign even inspired The Bieb himself to come out against Klobuchar’s Commercial Felony Streaming Act.
Well, don’t “belieb” the hype. It wasn’t true then and it’s even less true today. The Task Force is not recommending that cover artists—or even the fans streaming potentially infringing videos—be sent to jail. Rather, the report merely recognizes an anomaly in copyright enforcement in which the unauthorized reproduction and distribution of copyrighted works—such as illegal downloads—can be punished as a felony, but public performance—such as streaming—is currently a misdemeanor. In other words, the Task Force thinks it makes sense to harmonize digital and streaming standards. (This outlook is also shared by the Obama administration and the Copyright Office.) The reasoning, according to the report, is that “the lack of potential felony penalties for criminal acts of streaming disincentivizes prosecution and undermines deterrence.”
As the Washington Post perhaps overstates, the controversial Stop Online Piracy Act (SOPA) also contained a felony streaming provision (buried amongst a whole host of not-entirely-thought-through provisions), but this report is hardly the second coming of SOPA. In fact, the Task Force offers up a rather balanced perspective on “Copyright Policy, Creativity, and Innovation in the Digital Economy,” going so far as to recognize the futility of suing individual file sharers. The report also acknowledges that “these lawsuits [going after individuals] have generally proven to be not only controversial but also an inefficient method for combating large-scale online infringement.”
Instead, the Task Force plans to solicit public comment regarding statutory damages (fines set by the government) for individual file-sharers. (That would be a great opportunity for those who believe these damages are too high to make the case.)
But back to Bieber. Generally, music publishing companies (which control the underlying compositions performed as covers) are not in the business of going after individual users, anyway. While the green paper doesn’t touch on this specifically, public performances need to be licensed by the host of the content, and it is the host that is held responsible for any infringements. For example, if you band is playing a cover live in concert at a venue that has not paid its fee to performing rights organizations (such as ASCAP), it is the venue that is held responsible—not your band. The move to make streaming a criminal offense is meant to target large, commercial infringers—websites that illegally rebroadcast the Super Bowl online, for example—rather than burgeoning pop icons.
In fact, the trends point to the ongoing legitimizing and monetizing of covers on YouTube via blanket publishing deals. Before the arrival of user generated websites like YouTube, the process for securing permission to cover a song was rather straightforward. You are allowed to record your own version of a song so long as you obtained a “compulsory mechanical license” through the Harry Fox Agency, a process further simplified by online services such as Limelight. The cost for this license, as established by the government, is currently 9.1 cents for physical pressings as well as digital (streaming rates are currently $0.01 per stream).
The issue with user-generated platforms like YouTube, however, is that you end up with a bunch of artists and their iPhones uploading video selfies without thinking about the necessity of securing a compulsory license. In response to this trend, in March of this year the National Music Publishers Association (NMPA) started making deals with YouTube in an effort to create a new licensing model—one that, in the words of Universal Publishing Group’s David Kokakis, “protects and fairly compensates our writers, but also gives… the artists freedom to create.”
So rest easy, future Biebers out there. SOPA is still dead and you won’t be locked up any time soon… at least, not for uploading cover songs to YouTube.
Comments
5 comments postedThe report says that the
Submitted by Mitch Stoltz (not verified) on August 23, 2013 - 4:36pm.The report says that the current law "disincentivizes prosecution" of unauthorized streaming. So presumably the Klobuchar bill will "incentivize prosecution." That means more people will be prosecuted for streaming. So the DoC is in fact recommending that more people be criminally prosecuted.
And regardless of whether "music publishing companies are generally not in the business of going after individual users, it's the U.S. Attorneys, not music publishers, that prosecute criminal copyright infringement. And if the purpose isn't to put "individual users" in jail, then we can exempt them from felony liability, right?
Good to know that some people
Submitted by D-BoyWheeler (not verified) on August 23, 2013 - 6:23pm.Good to know that some people are looking at this carefully. And if this protects music fans and cover artists, it should protect video game Let's Play videos.
You're a smart guy, Mitch,
Submitted by Casey on August 26, 2013 - 7:47am.You're a smart guy, Mitch, but that logic seems pretty stretchy.
Maybe this is a moment to talk about statutory damages, copyright small claims and noncommercial "fair" exceptions? Isnt it encouraging that the federal agencies (and to a certain extent, Congress) are looking into ways to ease licensing frictions and preserve speech while making sure that remedies are more consistently applied? Seems like an opportunity for those who have solutions and not just 20th-century beefs.
I'm also certain you know that the burden of proof in a criminal copyright case (fairly rare, MegaUpload paramilitary raid aside) is too high to be applied to kids who uploads cover songs. (Not that this is even what is being proposed.)
Our point here is to unmuddy the waters. It's straight-up sad when Daily Kos runs a petition saying that viewers of an allegedly infringing YouTube video are going to jail. Someone has to be the voice of reason amidst the unhelpful escalation.
if you think that kind of advocacy is effective, we'll just have to disagree. I personally believe integrity is more important than effectiveness.
By the way, we're not endorsing the streaming proposal. We're endorsing common sense evaluation. Artists are smarter than they are sometimes given credit for, and the only way to keep them working with you on the future we want is not to play them like saps. These artists may be helpful on stuff like privacy, prosecutorial overreach, and yes, even disproportionate copyright enforcement. But let's be square with them.
Lastly, yes, if there were a
Submitted by Casey on August 26, 2013 - 7:59am.Lastly, yes, if there were a viable bill, (and that's an "if"), I'd want to make sure that individual users were exempt from federal prosecution. We could work on that together, even.
But our close read of the last proposal indicates that individuals aren't the intended target. If tighter definitions are needed, that's what we can push for.
If there's a case to be made that this proposal would chill innovation on the developer side, I'd be interested in seeing the rationale for that argument. Again, we are only responding to the exaggerated and false claims about imprisonment for cover artists, and trying to explain the current licensing environment for mechanicals and performances on the biggest UGC platform.
Casey, Let's do talk about
Submitted by Mitch Stoltz (not verified) on August 27, 2013 - 6:27pm.Casey,
Let's do talk about statutory damages and noncommercial exceptions, and easing licensing friction. Or even small claims, though I'm skeptical about that coming to pass.
The Daily Kos petition certainly sounds hyperbolic. That said, whatever a bill is "intended" to do becomes irrelevant the moment the President signs it. The question then is what *can* be done with it. I agree with LBJ: "You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered."
I don't think the US Attorneys are going to start prosecuting kids who upload cover songs...but then again, I didn't expect them to prosecute Aaron Swartz for downloading freely available articles, or Richard O'Dwyer for hosting a collection of links. Overbroad laws invite abuse. Can you really say that a publicity-hungry U.S. Attorney would never bring felony charges against a successful but naive cover artist to "make an example" if the law allowed it? We shouldn't pass a law that makes that possible.
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