Not This Again: Senator Tillis Tries To Slide Dangerous Felony Streaming Bill Into Must Pass Government Funding Bill

from the guys,-we've-done-this-before... dept

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 turnaround 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?

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Filed Under: christmas tree bill, copyright, criminal copyright, felony streaming, government funding, omnibus, thom tillis


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  • identicon
    Anonymous Coward, 10 Dec 2020 @ 9:44am

    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?

    Because it's a let the content Industry wreck the Internet bill?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 9:50am

    Reminds me of the No Electronic Theft Act.

    reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 10 Dec 2020 @ 9:56am

    Awww shit here we go again...

    Considering how gun-ho Tillis is with free-speech, I think we have every right to be doubtful that his Copyright reforms are going to be for the sake of people.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 10 Dec 2020 @ 10:13am

      Re: Awww shit here we go again...

      Oh it might have the best interests of the public at it's heart, just like I might win the lottery on the same day I'm struck by lightning and a meteor at the exact same second.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 15 Dec 2020 @ 5:24am

        Re: Re: Awww shit here we go again...

        Tillis having the best interests of "the public" at heart is far less likely than that. There's a better chance Shröedinger would open his box and find that rather than some random isotope atom collapsing into a given state the cat's quantum state collapsed into two live cats.

        reply to this | link to this | view in chronology ]

  • icon
    AC Unknown (profile), 10 Dec 2020 @ 9:59am

    It's almost as though Tillis is trying to torpedo the spending bill.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Dec 2020 @ 10:11am

    Gotta make the bosses happy after all

    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).

    It would be a short turnaround if he'd actually taken the comments into consideration but I suspect that the bill had already been written beforehand, either by him or (more likely) for him by his 'donors', and he asked for comments and suggestions for the same reason the FCC did when it came time to killing network neutrality: simply to go through the motions.

    As for trying to slip 'his' felony streaming bill into a must-pass one it's nice of him to admit that he doesn't think it could stand up on it's own and requires a parasitic method of getting passed, though I can't imagine why he'd think a bill that treats copyright infringement as a more serious crime than ones with actual demonstrable harm might be a tough sell...

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 10 Dec 2020 @ 10:27am

      Re: Gotta make the bosses happy after all

      "I suspect that the bill had already been written beforehand, either by him or (more likely) for him by his 'donors'"

      You have to be crazy in the modern era to believe that a tech bill was actually written by a politician without direct input by the people it stands to benefit, if not written by them from scratch.

      There's only 2 reasons why this stuff becomes important in politics - grandstanding to secure a re-election, or promise of a future windfall.

      reply to this | link to this | view in chronology ]

  • icon
    Blake C. Stacey (profile), 10 Dec 2020 @ 10:55am

    I wrote to my senators (Warren and Markey) and my representative (Pressley). In case anyone would like to adapt it, here's the text:

    I have written your office recently about an alarming turn in what should be a dry subject. The news about changes afoot in copyright law has only grown more serious since then.(1) This area of law is too important for daily lives and livelihoods to be undermined by sneaking provisions into omnibus bills. The gravity and the complexity of the topic demand open, transparent policy-making.

    Regarding the push for a felony streaming law, Sen. Tillis has claimed that his "proposal is narrowly tailored and only allows DOJ to prosecute commercial criminal organizations". But without the text in hand, none of us can say who qualifies as a "commercial criminal organization". That threshold could be incredibly low indeed.(2) Sen. Tillis has also stated that "tech groups like CCIA and public user groups like Public Knowledge have not come out against the proposal". The CCIA has in fact objected to another proposal also slated for the omnibus bill, a redux of the CASE Act. The CCIA has only said they do "not oppose compromise language reached with respect to “streaming.”" The rest of us --- i.e., those that the bill would affect --- have no way of telling if the CCIA's statements even apply to the current version of the felony streaming law, because we don't know what they saw and we don't know what the draft says now. The CCIA opposes the backroom-deal approach taken for the CASE Act; from out here where ordinary people live, it sure looks like that procedural point should apply across the board.(3) And as for "public user groups", Evan Greer, deputy director of Fight For the Future, has come out against the felony streaming proposal and has concerns with (what is known about) its substance.(4)

    I urge you to keep the spending bill a spending bill and not to let the Internet be ridered to death.

    (1) https://prospect.org/power/senator-thom-tillis-pushes-prison-time-for-online-streamers/
    (2) https://www.techdirt.com/articles/20201210/09131845861/not-this-again-senator-tillis-tries-to-slide- dangerous-felony-streaming-bill-into-must-pass-government-funding-bill.shtml
    (3) https://www.ccianet.org/2020/12/ccia-expresses-concern-with-copyright-proposal-in-spending-bill/
    (4) https://twitter.com/evan_greer/status/1337086150293467143

    reply to this | link to this | view in chronology ]

  • icon
    Jojo (profile), 10 Dec 2020 @ 10:57am

    Hot Take

    Honestly, I think that this bill is worse than the CASE act. The CASE act is fundamentally flawed and possibly unconstitutional, and the 30k is extremely punishing and excessive, but at least with the CASE act, there could be improvements, at least you have a “chance” to fight the odds by opting out.

    But whereas the CASE act feels like a half-baked cake with eggshells, this proposal feels like a frozen sirloin steak that was microwaved and you are forced to eat it barely-heated and still raw. This proposal will make a criminal out of “millions” of streamers, all because they do something as innocent as streaming copyrighted material, whether they’re aware of it or not. This completely ignores the first amendment and a blatant middle finger on fair use and free expression. The fact that Thom Tillis would rush a delicate discussion as copyright enforcement and its implications is not surprising in the slightest, but incredibly corrupt.

    Congratulations Tillis, you did the impossible by making me compliment the CASE act!

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 10 Dec 2020 @ 10:59am

    Who are "go-to" IP experts in Congress?

    If I write my Congressperson who has no special IP expertise, what colleague might I refer him/her to, as a general rule on all IP issues?

    For the Senate, I would guess
    Democratic-- Sen. Ron Wyden (D-OR)
    Republican-- Sen Rand Paul (R-KY)

    For the House
    Republicans-- I am glad to see Darryl Issa (R-CA) reentering Congress in January. He was one of 3 principals behind the 2014 patent reform bill that cleared the House.
    Democrats-- ?

    Does anyone have better suggestions-- especially for House Democrats?

    (2) The Senate IP subcommittee--
    Are there any good mambers on it, or are they all as questionable as Sen. Thom Tillis?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2020 @ 11:38am

      Re: Who are "go-to" IP experts in Congress?

      If I write my Congressperson who has no special IP expertise, what colleague might I refer him/her to, as a general rule on all IP issues?
      Republican-- Sen Rand Paul (R-KY)

      HAHAHAHahahahaHAHAHAHAhahahaaHAHAHAHAHAHAHa lololololololol

      reply to this | link to this | view in chronology ]

      • icon
        Hugo S Cunningham (profile), 10 Dec 2020 @ 12:58pm

        Re: Re: Who are "go-to" IP experts in Congress?

        OK, he's not a technical expert, but he does have libertarian reflexes. Do you have a better Republican Senator to recommend?

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 10 Dec 2020 @ 10:21pm

          Re: Re: Re: Who are "go-to" IP experts in Congress?

          "OK, he's not a technical expert, but he does have libertarian reflexes"

          You were listing IP experts. Why does being a libertarian magically make him the best choice, even though you admit he has no such expertise?

          reply to this | link to this | view in chronology ]

          • icon
            Hugo S Cunningham (profile), 11 Dec 2020 @ 5:43am

            Re: Re: Re: Re: Who are "go-to" IP experts in Congress?

            Rand Paul is the only Republican Senator I know who publicly comes out against copyright maximalism and patent trolling. I was asking if there were others.

            I looked up your profile and you seem to oppose copyright maximalism and patent trolling. Why not answer the obvious intent of my original question, rather than pursuing a ridiculous Internet squabble?

            https://www.youtube.com/watch?v=x-oCHWsNZwI

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Dec 2020 @ 1:07pm

      Encouragment of Learning

      If you're suggesting that there ought to be some sort of cross-partisan, cross-chamber, “Encouragment of Learning” caucus composed of Congressional delegates dedicated to promoting the progress of science…

      … no member of Congress wants a Hollywood target painted onto them.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 11:04am

    Omnibus spending bill

    Some of you probably heard that the deadline for the omnibus spending bill was Dec 11.

    The House took action yesterday.

    Congressional Record: Daily Digest for yesterday, Wednesday, December 9, 2020

    Suspensions: The House agreed to suspend the rules and pass the following measures:

    Further Continuing Appropriations Act, 2021, and Other Extensions Act: H.R. 8900, making further continuing appropriations for fiscal year 2021, by a 2/3 yea-and-nay vote of 343 yeas to 67 nays, Roll No. 240;

    Essentially, H.R.8900 kicks the can down the road for another week, setting a new deadline to December 18.

     

    —A random news article picked up a little bit ago, while googling for latest on action in the Senate—

    U.S. Senate to vote on spending stopgap, as Pelosi suggests longer COVID-19 timeline”, by Susan Cornwell, David Morgan, Reuters, Dec 10, 2020 (updated ~20 min ago).

    The U.S. Senate was expected as early as Thursday to extend government funding by one week …

    reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 10 Dec 2020 @ 12:07pm

    How can you attach an ammendment onto a bill that has absolutely nothing to do with each other. A better question would be why are they allowed to attach non fiscal ammendments to bills like this in the first place.

    Normally I would say this is just Dumb, but the vast majority of politicians have the appearance of being crooked and corrupt so I shouldn't be too suprised.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 10 Dec 2020 @ 12:13pm

    Riders on the spending bill.

    It's all the rage like the floss/dab

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 1:21pm

    There is no reason to stay calm, Go into panic mode

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 1:23pm

    Are you being optimistic?

    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.

    For individuals, 17 usc s 506(a) only requires 1 or more copies of 1 or more works (totaling retail value $1000+).

    The Klobuchar bill defined criminal streaming as

    (A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and

    ... which would encompass 10 people downloading the stream.

    Not ten works, one. And you can bet the argument would go "more than 10 unique IPs connected to this stream, we didn't track for how long or who they were, but that makes it criminal/organization/copyright infringement".

    A property valued at even one cent, if it goes viral, would be guaranteed to break the $2500 monetary cap.

    And if a sufficiently agile prosecutor considered each individual playback as a separate work, whether the law says 1 work or 10 would make little difference.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 10 Dec 2020 @ 1:55pm

    Weeelllll,

    What about the concept of getting people in Jail over CR, rather then MJ prosecution.?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 1:57pm

    its never been taken to court ,is it legal to stream a video game without getting permission from the developer or ip holder.
    This bill could make it a crime especially if the stream contains licensed music .
    twitch has been getting 1000,s of dmca notices, as twitch has no licensing deal with the major music companys .
    hour long videos on youtube have been removed for having 3 seconds of audio .
    this bill would have a chilling effect on free speech ,and fair use .
    can someone make a review of a tv show showing a minute long clip
    on youtube or twitch ?
    under this bill it could be a criminal offence .
    the new eu laws on filtering content are bad but at least they have been published and debated ,
    not slipped into another bill to authorise government funding

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 10 Dec 2020 @ 4:22pm

      Re:

      America's funniest Videos?

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 10 Dec 2020 @ 5:04pm

      No one is going to stop drivers from speeding.

      If they make casual piracy a felony (and then prosecute) it's going to pull law enforcement from mass piracy operations. We've already seen that law enforcement go after the lowest hanging fruit. Why risk going after drug distribution crews who have real guys with real guns (and will hunt down officials' children when they let their police interfere) when they can get just as much cred putting end users behind bars for possession, especially if they're nonwhite?

      Then there's the thing that people will learn to VPN and encrypt if that's what it takes to get to their cat pics and porn and babies dancing to the radio. There will suddenly become a market for easy-to-set-up end-to-end encryption and on-line anonymizing services. What are they going to do, arrest Philadelphia?

      Think about the GWX control panel that was made after everyone beefed over the windows 10 upgrade taskbar icon. Think about how each version of windows has its own loader program engineered not by the cracker community but by the global open source community.

      Right now, most netizens tolerate laws that regulate the internet. And some of us don't tolerate those laws that annoy us too much. We can see where the threshold is.

      If we make it so that the popular stuff is illegal, more people will circumvent the censorship and find a way to get access to (and from the other size, make, cultivate, curate and distribute) all the accidental copyright infringement videos we want... and plenty that are less accidental, or might otherwise be disliked by one state or another.

      They can pass all the laws they want, and ee'll all learn to go totally anonymous and get our media fixes anyway. Because too many people want the internet much as they want to go 85mph on freeways.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Dec 2020 @ 6:14am

        Unless they outlaw VPNs.
        Be careful what you wish for.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 17 Dec 2020 @ 11:22am

          Outlawing VPNs

          Most businesses in the US larger than a mom-and-pop convenience store (and even then!) depend on VPNs.

          It would be a very DPRKed-up move, and also hard to enforce.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Dec 2020 @ 4:22pm

            Re: Outlawing VPNs

            I'm mot meaning business vpns, I'm meaning non business vpns.
            Unless they're the same thing. idk.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 20 Dec 2020 @ 10:52pm

              Re: Re: Outlawing VPNs

              There is no difference on a technical level. What you seem to be promoting is the outlawing of VPN providers and force smaller shops to set up their own VPN from scratch, which will provide zero real world benefit, while greatly reducing security for smaller companies that don't have in-house IT staff to set them up.

              reply to this | link to this | view in chronology ]

  • identicon
    TripMN, 10 Dec 2020 @ 2:00pm

    Playing music while streaming? That's a paddlin'

    If this were to pass, this would put almost every citizen using social media under the thumb of the government.

    All it would take is digging up the video where you recorded your kids singing along to the radio, or that one time you were on FB Live and someone pulled up blasting WAP from their car stereo. Ma'am, we have video that proves you committed a felony, now tell me what I want to know or we get the DA involved.

    Where are the Libertarians screaming about government overreach? You thought a mask was uncomfortable. Going to the pokey because grandma's phone started playing Despacito while you were streaming is probably going to be a bit more uncomfortable.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 Dec 2020 @ 5:35am

      Re: Playing music while streaming? That's a paddlin'

      "Where are the Libertarians screaming about government overreach?"

      Libertarians have never been against government overreach. They're against consumer protection. They've only ever, in practice, been against government when said government interferes with the markets freedom to practice fraud, the rest of the time viewing "government" as an attack dog you can rent.

      In theory ivy-tower libertarianism might be different than the reality. The same way an ivy league highly educated communist scholar born to wealth will have a different opinion on what communism is than the people living in a nominal interim-state communist dictatorship.

      In practice a libertarian will want you to pay for that video where your kids sing along to the radio, the ringtone on your smartphone, and for the air you breathe.

      reply to this | link to this | view in chronology ]

  • identicon
    Marbleskull, 12 Dec 2020 @ 2:15am

    Text

    It looks like the text of the felony streaming provision was shared, or at least a draft of it. The 2nd condition is specifically relevant to ruling out content creators: "has no commercially significant purpose or use other than to publicly perform works protected under title 17" Looks like the copyright violation has to be a lot more specific/blatant than something a streamer or youtuber would do, unless they were only restreaming for profit and not adding to the content.

    reply to this | link to this | view in chronology ]

  • identicon
    Daniel Weisinger, 12 Dec 2020 @ 10:07pm

    Load of crap

    This guy is clearly funded by copyright trolls/lobbyists. Audio and even video fingerprinting technology is not that expensive and could easily be integrated to prevent 16 year old's from becoming felons.

    Years past the video upload site has been responsible for this. This guy is just for criminalizing America. Does he even know what happens to them in prison over felonies? Stop feeding the pedophile ring.

    reply to this | link to this | view in chronology ]

    • identicon
      Daniel Weisinger, 12 Dec 2020 @ 10:13pm

      Re: Load of crap

      On second thought, this could be Jeff Bezos's doing. Double dipping is a trend for the elite right now it seems. He is trying to profit from law enforcement. Gotta keep the money rolling in.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 16 Dec 2020 @ 8:32pm

    if the bill is really nothing to be concerned about, why hasn't

    Because Tillis is a Rino, running democrat BS for the copyright Industry just like under Obama, when the Democrats collude with Rino's to try and keep SOPA/PIPA, ACTA, etc, secret and push it through without American vote or say.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2020 @ 1:52pm

    Thom Tillis is not confident enough to be a politician

    Thom Tillis is a moron and either way if this bill goes to the Donald, he will reject the bill

    reply to this | link to this | view in chronology ]


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