Would you listen to a stream of a new song by your favorite band, if you knew the person posting the song on their blog was committing a felony while doing so? Would you post a video of yourself covering your favorite song, if you knew it might result in a prison sentence? Yes, we’re about to have this insane debate once more, as a paper released last week by the U.S. Commerce Department concerning copyright reform has reignited efforts to make unauthorized streaming a felony with the revival of certain provisions of SOPA (Stop Online Piracy Act).
The Washington Post has a sobering take on the issue. As they point out, a stand-alone piece of legislation from Sen. Amy Klobuchar (D-Minn.) proposed two years ago would have criminalized covers of songs shared on YouTube, making even Justin Bieber a criminal (and not for being a sniveling overprivileged brat).
“Bieber himself spoke out against Klobuchar’s bill,” they explain, “saying the senator should be “locked up—put away in cuffs” while noting he personally thinks it is “awesome” when he sees fans uploading their own covers of his songs.
This was a much-debated provision of the original SOPA proposition, and while original efforts to install an Internet crackdown on everything from posted embed codes to YouTube cover songs failed, in the eyes of the law streaming a copyrighted work over the Internet is still considered a violation of public performance rights. The violation currently qualifies as a misdemeanor, rather than the felony charges that accompany the reproduction and distribution of copyrighted material.
Awash in lobbyist influence, insulated from majority opinion and modern technological trends, the U.S. government still very much wants to change that.
Copyright law is a very slippery world, and though all common sense scoffs at the notion that public performance of virtually any kind should be a felony, a new battle is brewing over this very issue. Given how interwoven the entertainment industry is with the publishing world, it’s particularly damaging to the entire infrastructure of digital promotion and distribution to establish that sites that embed works from elsewhere are technically violating distribution or reproduction rights of a given work. To then have the feds go after these sites and imprison the posters – whether it be your little sister covering “Crash My Party” or an unauthorized MP3 stream on a music blog – is symptomatic of a much greater, much more ominous acceleration of corporate domination and government control over the internet.
This discussion has been exhaustively explored with SOPA’s original flight, yet demands repeating, as the U.S. government has become increasingly diligent in its efforts to have its way, regardless of precedent or public opinion. Is it wrong to criminalize a site that’s posting embeds of content hosted elsewhere, when they have no control over the original and are providing no means of download? This is quite different from uploading and hosting the material oneself, and should be seen differently in the eyes of law.
As Harvard law professor Jonathan Zittrain explained on TechDirt last year, the streaming provisions could easily include crackdowns on YouTube covers. The provisions state that if a person is to “transmit or otherwise communicate a performance or display of the work” in public, they’re in violation. That’s a highly inclusive reference, one which certainly applies to YouTubers.
In 2013, streaming is a way of life on the internet. Netflix boasts “nearly 38 million members” in 40 countries and the music streaming service Spotify claims over 24 million active users in more than 28 countries. It is becoming the norm for sites to have the capability to stream large amounts of data. To control this, the Commerce Department report recommends “[a]dopting the same range of penalties for criminal streaming of copyrighted works to the public as now exists for criminal reproduction and distribution,” adding that “[s]ince the most recent updates to the criminal copyright provisions, streaming (both audio and video) has become a significant if not dominant means for consumers to enjoy content online.”
In other words, under this proposal those embedding a YouTube clip of, say, the new Nine Inch Nails song would be subject to extremely harsh punishments, including but not limited to multiple-year prison sentences and digital forfeiture.
Methodology, or rather reckless ineptitude in policy enforcement, is also a major part of the problem. In addition to major labels filing copyright claims against their own artists (with Universal going so far as to declare 50 Cent’s official site to be a “pirate site“) and content over which they have no legal control whatsoever, TechDirt exposed some troubling facts in 2011 when a rap blog called Dajaz1 was seized by the US government’s Immigrations and Customs Enforcement division after a “technologically inept recent college grad” did nothing more than file an affidavit.
There was no oversight whatsoever, no investigation of any kind prior to federal action. Their tendency to swing the ax swiftly and ask questions later proved habitual, and set off a wave of justified hysteria over due process and personal rights online – one which, unbeknownst to any of us, was a sliver off the tip of the Titanic-sized iceberg we’d find with the revelations of privacy violation exposed by Edward Snowden.
There’s a reason the nation collectively lost their shit when SOPA and PIPA were first brought to the table: Censorship is un-American. SOPA is treason, recklessly enforced and predatorily designed – as is its second-life reanimated corpse now floating upriver from the Commerce Department, regardless of media conglomerates’ insistence on licensing and controlling all content. Yet the entertainment industry’s lobbying arm spent $279.5 million supporting these bills between 2010-2011, in an effort to reclaim old-model methods of distribution – you know, the pre-internet days of single-source media, extremely limited access and exorbitant prices. And now more than ever, profit and control are what set the legislative precedent.
We’re in the midst of an all-out control grab through corporate-owned media and a government that has gone entirely off the rails in terms of checks & balances and constitutional rights, whether through breaking its own laws on civilian surveillance thousands of times each year, a terrifying escalation of militarizing local police, or elimination of free speech and protection of whistleblowers, a longstanding vital component of access to free speech, transparency and journalistic integrity. Administration officials find themselves in a new world of public awareness over these issues, brought about by undeniable, horrifying truths uncovered by the likes of Edward Snowden, and fueled by relatively young forms of information distribution such as Twitter.
These copyright cases are no different, as we are in a war of censorship, privacy and control with our own government – the same government that reminds us that gutting the 4th Amendment and stripping education and environmental funding to all-time lows is inevitable and necessary as we spend trillion after trillion on deeply unpopular, unjustifiable wars overseas in the name of “freedom”. We have fought this streaming battle before, and the people won – a true victory for freedom. And so the fight has been repackaged and reignited. As the double-think rhetoric of government oversight “for our own good” and stripped rights for the sake of “protecting freedom” intensifies every day, an informed public is growing more skeptical, more aware, and more pissed off. The American people and our interests are not, by any stretch of the imagination, represented by our representatives and authorities, and we are preyed upon and monitored in a myriad of ways which the Obama administration is desperately attempting to keep under wraps. We are considered suspects in the war on “terror,” each and every one of us. For our own good, of course.
For more information on what we’re up against and just how wrong – and rooted in profiteering control – these efforts are, read this thorough SOPA analysis by a renowned criminal defense attorney, who has a particular bone to pick on the subject.
And if your head is somehow still not spinning, for a slightly more entertaining insight into just how fucked up and deceitful major labels truly are, read Cracked’s 5 Things Record Labels Don’t Want You To Know They Do.
