By Mike Masnick
We’ve documented that Senator Thom Tillis is working on a massive copyright reform bill for which he’s asked stakeholders for input (we provided some). He’s expected to unveil that bill next week (which seems like a suspiciously short turn-around from asking for ideas to actually releasing a bill). Yet, apparently, he decided that he couldn’t even wait for that process to play out to try to push forward the latest incarnation of the infamous felony streaming bill which Tillis is pushing to add to the must-approve government spending omnibus bill (similar to how others are trying to add the CASE Act to that bill.
If you don’t recall, felony streaming has been a goal of the recording industry for the past decade. Back in 2011, Senator Amy Klobuchar pushed the bill, and even Justin Bieber spoke out against it, noting that he built his entire fanbase by streaming his own covers of songs on YouTube. At the time, Bieber said that rather than locking up people for streaming copyright-covered content online, we should lock up Senator Klobuchar for trying to pass such a bill.
Even if you don’t trust Justin Bieber’s legal analysis of the bill, it might help to read the analysis done by Harvard law professor Jonathan Zittrain, who highlighted just how dangerous a felony streaming law would be — likely turning millions of individuals into potential felons, should law enforcement suddenly decide to turn on them. The whole idea of making streaming copyright covered works a felony is ridiculous. As it stands now, it can be a misdemeanor, and even that is crazy. Copyright should be a civil issue, not a criminal one. The standards to make it criminal are insanely low — such that tons of people could face criminal liability for doing things that seem perfectly normal. The threat to free speech (which is the key thing we raised in our comments on Tillis’ larger copyright reform) should not be ignored:
“A felony streaming bill would likely be a chill on expression,” said Katharine Trendacosta, associate director of policy and activism with the Electronic Frontier Foundation. “We already see that it’s hard enough in just civil copyright and the DMCA for people to feel comfortable asserting their rights. The chance of a felony would impact both expression and innovation.”
Of course, as the American Prospect article notes, it’s not at all difficult to understand why Tillis is trying to shove such a dangerous, anti-free speech bill through an omnibus spending bill, rather than having to debate and defend it through normal process. Because this:
Tillis, the chairman of the Intellectual Property Subcommittee, was recently re-elected for another six-year term by a margin of less than 2% over his Democratic opponent. In the final stretch of his campaign, Tillis received a surge of campaign contributions from PACs affiliated with entertainment companies and trade groups that lobby Congress for aggressive copyright enforcement against internet users, including prison time for unauthorized streaming.
You don’t say. How odd. Or, rather, how totally expected, and totally corrupt.
In the third and fourth quarters of 2020, Tillis’ campaign and leadership PAC received donations from PACs affiliated with the Motion Picture Association, Sony Pictures, ASCAP, Universal Music Group, Comcast & NBCUniversal, The Internet and Television Association, Salem Media Group, Warner Music, and others in the entertainment and cable industry that seek to suppress the unauthorized sharing of content. Many other entertainment industry PACs gave Tillis contributions earlier in the 2019-20 cycle, totaling well over $100,000, according to Federal Election Commission records. Executives of Fox Corporation, Sony Entertainment, Charter Communications, and CBS also made large donations to Tillis in the third quarter of this year.
After the Prospect article linked above and quoted here began to get attention, Tillis took to Twitter to push back on it, claiming it’s inaccurate, and that his (still unpublished) proposal is “narrowly tailored” such that the DOJ can only use it to “prosecute commercial criminal organizations.” Which… is the same argument that was made a decade ago with Klobuchar’s similar bill. But it ignores that the standards for what makes a “commercial criminal organization” regarding copyright are insanely low. Under current law, it means that you gain some sort of “commercial advantage or financial gain” in which you reproduce or distribute (or, in this case stream) at least 10 works, “with a retail value of more than $2,500.”
Assuming this definition is then applied to streaming as well, all it really means is that if a streamer uses 10 copyright works, within a 180 day period, for which he or she gains some sort of financial gain, they can now be considered “commercial criminal organization.” That’s… a ton of Twitch and YouTube streamers.
And, either way, if the bill is really nothing to be concerned about, why hasn’t Tillis released the text and why is he pushing it into this must pass bill?