November 3, 2011

"You never know how the legislation will be interpreted. Depending on the legal climate, it could be interpreted quite a bit."

Wisconsin lawprof Shubha Ghosh commenting on the proposed Commercial Felony Streaming Act. By contrast:
[U]nder the proposed legislation, it’s extremely unlikely artists like [Justin] Bieber would be prosecuted, said Mitch Glazier, senior executive vice president of the Recording Industry Association of America.

“If you’re a person who is recording a home video [covering a copyrighted song] and posting it, you’re not willfully infringing,” Glazier told TPM. “You don’t have criminal intent. The Justice Department is never going to go after you. And YouTube is licensed.”

So what would constitute willful infringement or criminal intent? For instance: if a user asked for money, or if a music publisher sent a notice asking a person to refrain from using the licensed material, but that person continued anyway. Glazier said the legislation is not “revolutionary, (but it) provides one more tool to be able to block some significant resources to pirates.”
The Justice Department is never going to go after you. How do you feel about assurances like that?

40 comments:

John said...

Yeah. Like I am going to trust the better nature of the Justice Department.

"Never count on a man's better nature. He may not have one"

-Lazarous Long

Carol_Herman said...

Well, I guess "global warming" is dead. And, politicians see a "sure thang" in Internet "interdiction."

Maybe, they'll start a "customs" department? And, it will be legal to knock on your door ... to gain access to your computer files.

What? You can tell them they're up on a cloud?

At least RIGHTHAVEN scared enough lawyers silly. But many lawyers know lots of people get terrified ... and that's how lawyers get hired.

So, look behind the legislation as "food for sharks."

Clyde said...

Sure. And the "Justice" Department wouldn't have a SWAT-style raid on a guitar-manufacturing company like Gibson... Oh, wait, that already happened!

Trusting the Obama-era "Justice" Department with your liberty is an exercise in foolishness.

traditionalguy said...

When seatbelt laws were enacted we were assured that this was to keep federal funding but no one would ever be ticketed form not buckling up.

10 years later the seat belt tickets became the new revenue stream and police staked out exit ramps and pulled over flocks of sheep to be sheared..."to save their lives" of course.

BarryD said...

Criminal intent?

I didn't know that was even a legal doctrine any more. Certainly it has been ignored in Federal cases involving trade.

Maximus_Aurelius said...

The VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone. - Jack Valenti testifying before Congress in 1982.

PROTECT IP and EPARASITE are perfect examples of reactionary, industry-provided and lobbyist-written bills. It seems likely that the sponsors don't fully understand the implications of these bills or are too deep in the pockets of the RIAA/MPAA lobby to care.

By the way, how'd that VCR work out for the industry Jack?

gerry said...

The Justice Department is never going to go after you. How do you feel about assurances like that?

If I'm black, a member of the New Black Panthers, or Jon Corzine, I'd be pretty confident that this DOJ won't come after me.

gregq said...

"The Justice Department is never going to go after you. How do you feel about assurances like that?"

That's it's a guarantee that it's a bad law that shouldn't be passed.

bagoh20 said...

It's not outright criminal like running a lemonade stand without a license. Those little scofflaws need hit hard.

edutcher said...

I believe Henry Brandon said it best to The Duke, "White man speak with forked tongue".

Although, in history, Spotted Tail nailed it to the wall, "All men from Washington are liars".

Bruce Hayden said...

Intent has gotten quite fuzzy sine the 1976 Act, and, esp. since the U.S. joined Berne a decade later.

One of the big things is that original expression is automatically protected by copyright, unless created by an employee of the U.S. government within the scope of his employment. No notice or registration is required. It is totally automatic, starting at the time of first fixation in a tangible medium (which now includes computer RAM).

This means that you should be able to impute or presume intent merely from the acts of reproduction, public distribution, creation of a derivative work, etc., as long as you have no real reason to believe that the work was created prior to, say, 1989 (Berne), or 1992 (Copyright Renewal Act). And, even before those dates, innocent infringement is problematic.

In short, thanks to joining the Berne Convention, etc., it is now theoretically hard to show lack of intent to civilly infringe copyrights. (Courts are still a hesitant to levy increased damages for intentional infringement unless faced with aggravating factors).

And, note, that I am not talking Fair Use or ownership of the copyright, which is what Righthaven turned out to be about. These are defenses to or excuses for infringement, and do not actually involve whether infringement actually took place.

So, at best, what we are talking about is the difference between criminal infringement and civil infringement. Used to be that you could look to the monetary value to determine that. Not so much any more, after all those college kids were able to escape criminal liability by showing that they did not have a financial motive. That did not make the RIAA, etc., happy, and the requirement for criminal intent was loosened as a result.

cubanbob said...

Republicans are brain dead. They should water down entertainment copyrights as much as possible and expand fair use as much as possible. The sit back and enjoy the show as Hollywood implodes and every shit-for brains actor and director see their income vanishing. Great fun to be had by all.

Bruce Hayden said...

Let me add that one of the big problems with criminal copyright infringement, is that it happens millions of times a day across this country. But almost none of it is prosecuted. It maybe could be, but the USAs have much more important things to do with their limited time and staffing.

I was on a copyright panel with the Asst. USA for CO almost two decades ago, and he pointed out, even back then, that the usual way that they determine whether to prosecute copyright cases was to run the offenses, etc., through the Federal Sentencing Guidelines, and if they did not call for at least a year or two of prison, then they wouldn't (usually) spend their time. At that time, that required fairly egregious copying of a lot of digital material, given the $2,500 floor and the sentencing guidelines. I seem to remember maybe a $100k threshold. Something like that.

The problem though is that is/was how the usual cases were run. The USAs could, and often have, used political concerns in deciding what cases to prosecute. And, that means that the content providers often seem to have an easier time getting their cases prosecuted than if it were you or I trying to get such.

cubanbob said...

Bruce Hayden said...

There is way too much copyright abuse, especially by trollers. Skip the treaty and start the clock when the work is applied for and published. And copyrights need a much tighter definition of what is actually copyrighted and not what is inferred on the application and full disclosure of prior works and public domain components.

Bruce Hayden said...

Republicans are brain dead. They should water down entertainment copyrights as much as possible and expand fair use as much as possible.

Should, but likely won't. Know one of the guys who wrote the Sonny Bono (aka Mickey Mouse) copyright extension act. And it was the Republican Sonny Bono who was pushing it, and it was Republican counsel who wrote the act.

In Bono's defense, he was one of the few in Congress who really understood copyright, and, yes, as a song writer and singer, had a reason to prefer longer copyright term (and, yes, his songs are still being sung and played).

sorepaw said...
This comment has been removed by the author.
ndspinelli said...

"Checks in the mail, I'll still love you.." you get the drift.

Bruce Hayden said...

There is way too much copyright abuse, especially by trollers. Skip the treaty and start the clock when the work is applied for and published. And copyrights need a much tighter definition of what is actually copyrighted and not what is inferred on the application and full disclosure of prior works and public domain components.

Would be nice, but none of that is going to happen any time soon. And, you can pretty much ignore public domain - there is very little of it any more. There can't be, since anything that has sufficient original expression (a very low standard) that is not a U.S. government work, created in, say, the last 30 years, is automatically protected by copyright. The only way that we figure something can later join the public domain is through an actual assignment, which may need to be written.

Thus, my posts here are protected by my copyright, as are yours by your copyright.

Let me also point out that while registration may be useful in acquiring certain remedies, and is required before being able to sue for infringement, what and how you describe your copyright in the registration application does not control how a court interprets the extent of your copyright.

Changing back to the pre-76 type copyright regime we used to have would require that we reject the Berne Convention treaty that we signed and was ratified by the Senate. This isn't likely to happen, esp. since the Berne Convention requires that other signatory countries respect our copyrights (and there are very few who haven't joined). We are not just talking Hollywood here, but also the music companies, the software companies (for their software), etc., who depend on this international copyright protection to protect their products. Ain't gonna happen.

DADvocate said...

Just making it that much easier to commit Three Felonies a Day.

Hagar said...

That's quite an attitude.

And of course presumes that the DoJ future actions are predictable, which I think the present administration has already disproved.

Bruce Hayden said...

The Justice Department is never going to go after you.

Until it does
.

Which means, in this context, that the DoJ isn't going to go after you for criminal copyright infringement, until you piss off someone with sufficient political connections.

And, that is the problem here - that this is just one more place where we have a government of men, and not one of laws.

Freeman Hunt said...

What a lie. There's been an erosion of the requirement of mans rea in federal law and many people have been swept up in it as a result. WSJ was following the phenomenon just a month or so ago.

cubanbob said...

Bruce Hayden said...
Let me add that one of the big problems with criminal copyright infringement, is that it happens millions of times a day across this country. But almost none of it is prosecuted. It maybe could be, but the USAs have much more important things to do with their limited time and staffing.

I was on a copyright panel with the Asst. USA for CO almost two decades ago, and he pointed out, even back then, that the usual way that they determine whether to prosecute copyright cases was to run the offenses, etc., through the Federal Sentencing Guidelines, and if they did not call for at least a year or two of prison, then they wouldn't (usually) spend their time. At that time, that required fairly egregious copying of a lot of digital material, given the $2,500 floor and the sentencing guidelines. I seem to remember maybe a $100k threshold. Something like that.

The problem though is that is/was how the usual cases were run. The USAs could, and often have, used political concerns in deciding what cases to prosecute. And, that means that the content providers often seem to have an easier time getting their cases prosecuted than if it were you or I trying to get such.

11/3/11 12:49 PM

The copyright office works on an honor code and does no fact checking or review of applications. That is why criminal sanctions should be severely limited as an applicant can 'innocently' lie through their teeth on the application and once the registration is granted they have the presumption. Now if there was an elimination of the rule of doubt and a mechanism to formally initiate a cancellation proceeding by a third party with that party in the loop things would certainly be different. The amount of fraud on the copyright office is pretty impressive, even more so when the fraud is perpetuated on the courts by extension, the government ought to start prosecuting the trollers and copyright fraudsters.

Bruce Hayden said...

And of course presumes that the DoJ future actions are predictable, which I think the present administration has already disproved.

I am not sure why you think that the actions of the current DoJ weren't predictable. Should you have been surprised that their voting rights section turns a blind eye to Black voter intimidation, while pushing Max Black Congressional districts? That they have used any tool at their disposal to try to cut back on the 2nd Amdt? I would suggest that they have operated in an entirely predictable manner.

And, I should add, that it should have been entirely predictable that the guy who pushed the Marc Rich pardon, and then lied about it before Congress, would turn out to be the most dishonest Attorney General of our lifetimes.

prairie wind said...

Department of Homeland Security has ICE agents that are farmed out to investigate all kinds of crimes. Those agents are busy investigating internet crimes already. DHS gets plenty of money for investigations and for forensic equipment/software. It wouldn't be a big switch for them to take on copyright infringement investigations, too.

Thank goodness the victims of copyright infringement are not as sympathetic as victims of child porn, or the feds would be pushing for mandatory minimum sentences for copyright violations. (I don't know what the sentencing is like for copyright cases...maybe they already have MM sentences.)

As soon as someone figures out how to make money from copyright investigations, the gloves come off. Unionized prison employees, federal prosecutors, DHS, ICE...they all have something to gain from criminalizing everyday behavior.

traditionalguy said...

An Army of locust like Government Agents enforcing the last jot and tittle of the grayest areas of laws and regulations IS EXACTLY what Obama calls a Jobs Bill.

cubanbob said...

Bruce Hayden said...
Republicans are brain dead. They should water down entertainment copyrights as much as possible and expand fair use as much as possible.

Should, but likely won't. Know one of the guys who wrote the Sonny Bono (aka Mickey Mouse) copyright extension act. And it was the Republican Sonny Bono who was pushing it, and it was Republican counsel who wrote the act.

In Bono's defense, he was one of the few in Congress who really understood copyright, and, yes, as a song writer and singer, had a reason to prefer longer copyright term (and, yes, his songs are still being sung and played).

11/3/11 12:56 PM

Too bad about Sonny,but the republicans ought to punish the Hollywood left by making motion picture and entertainment copyrights on the same level playing field as other copyrights, limit them to the strict and narrow concept of a specific interpretation of something and that that something be original in its entirety or to specify what is the copyrightable material in the work and by inference everything else isn't so an infringement would be only a virtual identical copy of the the copyrightable work. If that is good enough for the rest of industry it ought to be good enough for the entertainment industry. Copyrights shouldn't be de facto patents or trade marks. But that is what all too much of what entertainment copyrights really are.

purplepenquin said...

The Justice Department is never going to go after you.

Ask the Medical Marijuana patients how that has worked out for them so far...

caplight said...

Prosecutorial discretion!

The crowd laughs.

I'll be appearing in the lounge all week. Please try the veal.

John said...

The only way that we figure something can later join the public domain is through an actual assignment, which may need to be written.
++++

I heard Larry Lessig speak on this once. According to him it is almost impossible for a copyright owner to put something into public domain.

Creative Commons tries to but even that, Lessig says, is a crap shoot.

There is just no actual legal mechanism to give up copyright.

There should be.

John Henry

John said...

I have no objection to perpetual copyright IF the owner takes pro-active steps to keep a work in copyright.

But I think that copyright should last for 20 years (or 10 or 30, we can discuss the term) unless the owner renews.

I think orphan works, those where nobody knows who owns the copyright, are a huge, huge, problem.

John Henry

bgates said...

I am not sure why you think that the actions of the current DoJ weren't predictable.

It was predictable given how its leadership is constituted. I think he means it would have been awfully difficult in, say, 2002 to imagine the 2011 DoJ acting like this.

Though again, we don't need to quibble over how well they can forecast ten years into the future when we know they're lying to us right now.

rhhardin said...

Let's review the argument for for eliminating copyright entirely.

Larry J said...

The Justice Department is never going to go after you. How do you feel about assurances like that?

That ranks right up there with "Don't worry, baby, I'll pull out before I come" on the scale of assurances. Ever hear of the book, "Three Felonies a Day"?

Big Mike said...

You mean that there actually are people someplace in this country who trust the government to use the power in this legislation wisely?

I have a bridge I can sell them.

Robin said...

Since the RIAA owns the DOJ, I trust that assurance not one whit.

Paul said...

"The Justice Department is never going to go after you. "

How do I feel?

It's like the statement, "We are from the IRS and we are here to help you."

Yea... sure.

Kirk Parker said...

" 'The Justice Department is never going to go after you.' How do you feel about assurances like that? "

Like there's a special circle in Hell for people who make those kind of statements. Go keep Jack Valenti company!

timmaguire42 said...

Well, since in the intellectual property field, The Justice Department takes it's marching orders from the big media organizations, I think a VP of the RIAA would have a better sense than anyone of what the they will prosecute.

The question is, can we hold him to it? What can we do when it turns out he's lying?

veni vidi vici said...

IF they're never going to go after anyone, they need to either (a) not bother wasting everyone's time and money with this piece of legislation (or its relevant part); or (b) clarify the legislation so that it spells out very explicitly what the target conduct is.

I can't believe that people - and more importantly the lapdop shitheel press - allow legislators to get away with, and even encourage, the writing and passage of these types of overbroad, totalitarian-drafted laws. I guess "faith-based" has many meanings.