Tillis Release Details Of His Felony Streaming Bill; A Weird Gift To Hollywood At The Expense Of Taxpayers

from the and-why-through-omnibus dept

Earlier today, we wrote about reports detailing the latest attempt to push through a bill to make streaming copyright-covered works online a possible felony, this time being pushed by Senator Thom Tillis, who wanted to attach it to the federal spending omnibus bill. As we noted, Tillis was pushing back on some of the criticism, saying that the bill is very narrowly tailored and wouldn't be used to criminalize random people. Of course, the response to that is twofold: (1) if this is the case, why haven't you released the text and (2) why are you shoving it onto a must-pass funding bill without any of the normal debate and discussion?

This afternoon Tillis dealt with the first part of this by finally releasing the text of the bill. And he's somewhat correct in noting that the bill is narrowly tailored. That doesn't make it good or necessary. The key bit is this:

PROHIBITED ACT.—It shall be unlawful to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that

‘‘(1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;

‘‘(2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or

‘‘(3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.

So, the argument is that the "narrow" tailoring here is such that it only applies to websites, not users, if that site is "primarily" engaged in streaming unlicensed copyright-covered works, has no significant purpose other than that, and intentionally markets itself as such.

And, to Tillis' credit, this is much more narrowly tailored than previous such bills. It still doesn't explain why the text is only just being released now or (more importantly) why this has to be added to a must-pass Christmas Tree government funding bill.

To some extent, the thinking behind this bill is that it's focused on a very specific set of circumstances. There have been websites out there that stream content they host, and those already faced felony charges for the hosting -- but this seems to extend that to sites that stream the content that is hosted elsewhere. Of course, there is a much bigger question of why is this a criminal issue in the first place? It is yet another example of Hollywood trying to pass off what should be a civil issue, where the movie studios and record labels have every right and ability to sue these companies in court, and turn them into an issue that the US taxpayer now has to deal with? It's basically a giant subsidy to Hollywood, taking a private dispute and putting it on the public dime.

As Public Knowledge says in its response to the bill's release, "we do not see the need for further criminal penalties for copyright infringement." Indeed.

The end result is that this bill is not as horrific as past felony streaming bills, and is, in fact, narrowly tailored. However, that does not change the fact that moving copyright issues away from civil disputes to be handled by copyright holders, to the federal government, is something that we should not support. Indeed, it should be seen as somewhat odd that a Trump-supporting Republican, who claims to be for keeping government out of business, is directly subsidizing Hollywood by having the federal government and US taxpayers take over their own civil legal dispute by turning them into criminal issues.

And, more importantly, none of this explains why the bill should be released at the last moment, and then dumped into the must-pass federal spending bill. It's a bad idea. If Tillis really thinks this bill is good and necessary, he should have to defend it as such through the regular process bills go through.

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Filed Under: copyright, criminal copyright, felony streaming, platforms, streaming, thom tillis


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  • icon
    That Anonymous Coward (profile), 10 Dec 2020 @ 3:38pm

    Copyright... more important than citizens lives.

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 4:00pm

    Some are saying it will be voted on tomorrow, does anyone know if that true?

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

    • identicon
      Anonymous Coward, 10 Dec 2020 @ 4:24pm

      Stopgap funding [was Re: ]

      Some are saying it will be voted on tomorrow…

      It probably won't be — The omnibus spending bill probably won't be voted on tomorrow.

      Instead, yesterday the House passed a continuing resolution, H.R.8900, which would fund the government for one more week, while everyone negotiates on the omnibus spending bill.

      The Senate was expected to take up the House's continuing resolution today. But, for various reasons, they didn't quite get around to it, or something sort of like that.

      Anyhow, I expect the Senate to try again on the continuing resolution for stopgap funding tomorrow. That won't be a vote on the omnibus spending bill.

      Senate objections threaten to delay stopgap funding vote”, by David Lerman and Niels Lesniewski, Rollcall, Dec 10, 2020 (4:56pm no timezone)

       . . .

      The latest stopgap, if signed into law, would extend current funding through Dec. 18.

      That deadline would give Congress an extra week to negotiate and pass an omnibus spending package.

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 4:03pm

    That’s a slight sigh of relief.
    Still not great though.

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

  • icon
    ECA (profile), 10 Dec 2020 @ 4:04pm

    Why it took so long?

    Subtract 1 section, and what happens?

    "for purposes of commercial advantage or private financial gain,"

    What would happen?

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

    • identicon
      Anonymous Coward, 11 Dec 2020 @ 11:56am

      Re: Why it took so long?

      What would happen?

      Simple: Any transmission becomes a felony until proven otherwise and copyright cartels get to have a field day.

      Obviously what they wanted, and obviously what they will get eventually.

      Meanwhile to everyone else not in a copyright cartel: "Felonies are our war medals."

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Ray Zaldese Points, 10 Dec 2020 @ 4:06pm

    I'm willing to stand the expense, as all honest people are.

    The ridiculous F-35 program hit one TRILLION dollars, but you're frugal on enforcing copyright, eh?

    As I wrote yesterday, you oppose ANY enforcement of a personal right listed in body of Constitution. It's just "a moral question" to you, and you're for NOT hindering pirates at all, let alone rewarding creators.

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

    • icon
      ECA (profile), 12 Dec 2020 @ 11:15am

      Re: I'm willing to stand the expense, as all honest people are.

      You paint a picture,
      I buy it.
      How much did you get?
      Are you going to get more?
      Not unless you CREATE more.
      GET IT?
      GOT IT?
      GOOD.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Ray Zaldese Points, 10 Dec 2020 @ 4:09pm

    We'd at least get entertainment in return! (Okay, lousy ones...)

    Let's see your plan to, say, tax GOOGLE'S 30-40 percent profits.

    And where do you stand on AOC's TAX THE RICH plans, Maz? Have you bought one of her T-shirts, or isn't it true that you wouldn't be caught dead in one because you identify with and protect The Rich?

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

    • icon
      ECA (profile), 10 Dec 2020 @ 4:20pm

      Re: We'd at least get entertainment in return! (Okay, lousy ones

      Then lets tax all the corps the same.
      They wont let that happen, as LESS taxes mean more Jobs??

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

    • icon
      Samuel Abram (profile), 10 Dec 2020 @ 4:23pm

      Re: We'd at least get entertainment in return! (Okay, lousy ones

      And where do you stand on AOC's TAX THE RICH plans, Maz?

      I fail to see how this is relevant to this article, or TechDirt in general.

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

    • identicon
      Anonymous Coward, 10 Dec 2020 @ 4:25pm

      Re:

      And where do you stand on AOC's TAX THE RICH plans, Maz?

      Why are you so angry at a plan to tax the rich, blue?

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

  • icon
    Jojo (profile), 10 Dec 2020 @ 5:23pm

    How.... incredibly underwhelming

    I guess that I’m all glad that this bill was largely anti-climatic, so anti-climatic that I retract my hot take. But that doesn’t mean that the proposal or Thom Tillis is out of my criticism. Tillis is still a copyright shill and what he has planned for the future is still not encouraging. As for the proposal, it’s not terrible, but not impressive either. It’s still a bad law, but not apocalyptically bad. Just pointlessly bad. We were all expecting SOPA-LITE, but instead we just got SOPA with ZERO calories.

    I’m both cautiously relieved and outright furious for having a days-long anxiety attack over something largely inconsequential. But the question that still remains: “Y tho?”

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 6:36pm

    Doesn't this effectively criminalize Twitch if a game company wanted to press the issue? The whole website is primarily unauthorized public performances of games.

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

  • icon
    Andrew Cook (profile), 10 Dec 2020 @ 6:51pm

    Correction

    So, the argument is that the "narrow" tailoring here is such that it only applies to websites, not users, if that site is "primarily" engaged in streaming unlicensed copyright-covered works, has no significant purpose other than that, **or** intentionally markets itself as such.

    Though I'm pretty sure any legitimate illicit site will hit all three, it's entirely possible that prosecutors will happily target innocent sites using only the middle prong.

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 7:30pm

    The more I see of America the more I just think this place is just rotten core that was never fresh to begin with except in the tourism ads.

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 8:10pm

    Financial gain

    (a) DEFINITIONS.—In this section—
         (1) the terms … ‘financial gain’ … have the meanings given those terms in section 101 of title 17;

    17 USC § 101 - Definitions

    The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

    That foregoing non-intuitive, non-dictionary definition of “financial gain” was inserted into title 17 by Pub. L. 105-147, the No Electronic Theft (NET) Act, in 1997.

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

  • identicon
    Anonymous Coward, 10 Dec 2020 @ 8:47pm

    Narrow tailoring

    [T]he argument is that the "narrow" tailoring here is such that it only applies to websites, not users

    The bill contains no limitation just to websites. Instead, it explicity defines “digital transmission service” with reference to the existing 17 USC 101 definition of “digital transmission”.

    The bill contains no exemption for users. Whoever users are, ''cause the bill doesn't mention users. It defines who it applies to by specific conduct: anyone who “offers or provides…”.

    Without stretching things too much, I can read this language to apply to BitTorrent. And, if I can read it that way, so can some assistant U.S. attorney.

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

    • identicon
      Anonymous Coward, 10 Dec 2020 @ 9:58pm

      Re: Narrow tailoring

      The “very bad” news: this law is so overwhelming if you put it in video form and put anything copyrighted and a lawyer willing to sue you can pretty much end up on the block.

      The “maybe” good news: said overwhelmingness “as you said” pretty much promises this will end up in court some day raising concerns.

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

      • identicon
        Anonymous Coward, 11 Dec 2020 @ 6:57am

        Re: Re: Narrow tailoring

        … if you put it in video form…

        The bill is not limited to video.

        The bill first explicitly uses, “works protected under title 17“. That, by itself, means every copyrighted work. To illustrate, 17 USC § 102(a) includes eight categories.

        Five out of those eight categories are listed in 17 USC § 106(4). Another category out of that eight is listed in § 106(6).

        The bill defines “publicly perform” in terms of the § 106 para (4) and (6) so-called performance rights. Both of those paragraphs refer to the 17 USC § 101 definition:

        To perform or display a work “publicly” means…

        That rather lengthy § 101 definition of “perform” “ publicly”, in turn, references the § 101 definition of “perform”:

        To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

        One thing is sure, here, to render a work “by means of any device or process” is not used in the sense of “melt down”.

        The bill is not limited to video.

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

      • identicon
        Anonymous Coward, 11 Dec 2020 @ 8:22am

        Re: Re: Narrow tailoring

        … this will end up in court some day…

        “An entity may transmit a performance through one or several transmissions, where the performance is of the same work.” American Broadcasting v Aereo (2014).

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

        • identicon
          Anonymous Coward, 11 Dec 2020 @ 4:43pm

          Re: Re: Re: Narrow tailoring

          That’s the “maybe” part.

          What I’m saying is if it does go to court hope it’s dancing baby 2 and the judge understands this has a chilling effect and strikes it down.

          And not one where the tube Jim uploads his music collection and the industry just digs in.

          “Maybe”

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

  • identicon
    Pixelation, 10 Dec 2020 @ 9:04pm

    Tillis, like Syphilis, a gift that keeps on giving.

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

  • icon
    MinchinWeb (profile), 10 Dec 2020 @ 11:30pm

    Twitch?

    It doesn't seems like too much of a stretch to think that Twitch, without everything licensed (as they currently seem to be trying to fix), could find itself caught up in this bill.

    That would be one hell of a horrible bargaining position if every time you (as Twitch or a competitor) approached a studio or a record label to license their IP your choices were to secure the license or go to jail...

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

  • icon
    Jeroen Hellingman (profile), 11 Dec 2020 @ 4:15am

    If this type of criminalizing actions which are more properly handled through civil courts is seen as a form of government subsidy, this will also be in violation of various trade agreements that forbid government subsidies, and thus open up the US to sanctions from other countries. I can imagine the French saying, hey the US entertainment industry is getting this subsidy, so we will impose another levy -- not that they care about subsidies or are great with copyright themselves (they aren't), but because it is yet another stick to hit the US with.

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

  • identicon
    Anonymous Coward, 11 Dec 2020 @ 4:52am

    THIS could be used to target twitch, since many streamers play games with music as part of the soundtrack,twitch has no deal with music labels .
    very few streamers have formal permission to stream games with or without music .
    if this gets through of course there will be more bill,s in future, worse than this probably to make it a felony to stream even one song or a short video unless you have permission from the ip holder.
    These bills are been push for by legacy media corporations which make tv, and films and also the large music companys .
    and of course they will not stop websites that are based outside america
    from streaming illegal content.
    bills like these chill free speech, and fair use.

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

  • identicon
    Anonymous Coward, 11 Dec 2020 @ 9:43am

    This could apply to many forums on reddit, that display images used in memes or other contexts, the point of a meme is to use an image as a joke or to make a point by combining images with text
    How many of the images or gifs on short video clips are licensed from the creator , very few I.d say.
    This law does not seem to allow for parody or fair use of images and short video clips
    The riaa is targeting twitch for the use of music in the background
    Maybe old media TV, film Companys will sue websites like reddit
    for using images or video clips without permission

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

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

    So how much is this asshole getting from Hollywood for giving this? And remember it's paid for by the very people being stopped! Yes! Us!
    Have never understood how these fuckers get voted into the positions they hold!

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

    • identicon
      Anonymous Coward, 11 Dec 2020 @ 11:16pm

      Re: he’s a number 2

      He won in nc by 2%

      They literally got him over the line beaten with a stick in terms of funding.

      So yeah he would go onto into a ports potty and do anything they ask.

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

  • identicon
    Anonymous, 11 Dec 2020 @ 10:06pm

    "Must PASS BS"

    It's Scum politicians like this that push unrelated BIlls under the publics' nose that pisses me off. Especially when it comes to copyright. They know the American public majority use their internet for streaming of pirated content, especially under COVID where you can't view movies legally anyway, not to mention stores are getting rid of physical copy DVDs and CDs forcing more people to pirate what they can't get.

    A majority of Americans did not want SOPA or any other related copyright bills.

    So the entertainment industry conspires more behind American's back to work around them finding out and determine sneaking shit like this into "must-pass" bills is how to shove it down our throats.

    Joe Biden was the most corrupt politician around conspiring with the entertainment industry in a similar way. It was a matter of time other corrupt politicians would pick up where he left off after successfuly getting essentially every entertainment industry to censor corruption stories about him while he sat in his basement, only to "WIN" an election he never campaigned.

    My point is. The entertainment industry has for decades had their money stuffed in politicians' pockets willing to bend over Americans. Now they are doing it more covertly without the public majority finding out to object and put a stop to it by showing it into this "must pass bill".

    People need to fight back and pirate/stream everything. Stop peaying for cable, movies, music, and stream/rip/pirate it ALL. Call the politicians who did this and tell them FUUUUUK YOU!

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

  • identicon
    Anonymous Coward, 22 Dec 2020 @ 8:46am

    Services outside the United States with no servers in the USA are not subject to this law.

    One very popular pirate streaming service has, for over 10 years now, been been operating from servers in Amsterdam.

    As a Dutch-based service, they are not subject to this law.

    While they are still subject to the EU copyright directive, they cannot be prosecuted in the United States as they are a Dutch-based company.

    \

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


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