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.