Copyright Laws Require Revision to Keep Up
For reference, here is the Copyright Office’s summary of the Digital Millennium Copyright Act and the full law.
Two years ago, I began law school as a person who spent far too much time watching television and sports for someone in law school. Now, not much has changed other than the fact I also watch too many movies, and also spend a lot of time reading about the business behind both sports and entertainment and just what goes into getting such programming on the air.
Showtime paid $200 million to broadcast six Floyd Mayweather Jr. fights. The average “Game of Thrones” episode costs $6 million to produce. The resources that media companies put into such efforts are vast, and that is why their valuable intellectual property should be protected.
Unfortunately, that task is far easier said than done thanks to the Internet and the rapidly changing technology that exists on it, and in order to keep up with the technology, changes need to be made to the Digital Millennium Copyright Act.
Copyright owners are constantly victimized by websites which stream their content without permission, and the U.S. government has attempted to curb this behavior through strengthening the criminal aspects of copyright law and shutting down such websites. While some of these efforts have been successful, there is still a long way to go.
Actions taken against criminal copyright infringers are done so under 17 U.S.C. §506, which states that one’s actions reach the level of criminal infringement in three ways. The infringer can violate the exclusive rights granted to a copyright owner under §106 of the Copyright Act to benefit financially, by reproducing copyrighted works which have a total retail value of more than $1,000 or by distributing such works on a computer network accessible to the public which one knows were intended for commercial distribution.
The Digital Millennium Copyright Act of 1998 strengthened some of the criminal sanctions on criminal copyright infringers who infringe both willfully and for financial gain. This included increasing fines to $500,000 for first-time offenders and $1,000,000 for repeat offenders and prison sentences of five years for first offenders and 10 years for repeat offenders. The Copyright Act also provides for full restitution, but your average infringer of a lot of these expensive works likely cannot pay such exorbitant sums anyway.
In March 2011, Brian McCarthy was arrested and six months later he was charged with criminal copyright infringement. McCarthy allegedly intercepted and streamed live sporting events on channelsurfing.net. It turned out he was linking the material rather than hosting it, but he was still charged under the criminal statute and as a first-time offender, he faced up to five years in jail, but he reached a deferred prosecution agreement that allowed him to avoid jail time in exchange for paying back the $351,033.54 he made off of the site. The lengths to government went to track McCarthy down included pulling information from a domain register, PayPal, public records, the DMV, ad networks, Gmail, Comcast and basic surveillance just to ensure he lived at the address they ultimately found.
The U.S. Immigration and Customs Enforcement seized 16 websites in February 2012 that had been illegally streaming sports as part of a larger sweep of web sites welling both illegally streaming sports and selling fake NFL memorabilia. In the sweep, federal agents arrested for criminal copyright infringement one man who had allegedly been operating nine of the 16 sites.
During this time, the government unsuccessfully attempted to provide more protection for copyright owners. In the same month McCarthy was arrested, the Obama administration proposed legislation that would “ensure felony penalties for infringement by streaming and by means of other new technology” and “increase the statutory maximum for economic espionage from 15 to 20 years in prison.” The bill containing the proposed changes died in the senate a few months later.
The other side of the aisle followed the failed Obama legislation with its own proposal when Texas Republican Congressman Lamar Smith proposed the Stop Online Piracy Act (SOPA). SOPA provided for the requesting of court orders to bar search engines from linking to infringing websites, to require Internet service providers to block access to infringing websites and to bar advertising networks and payment facilitators from working with infringing websites. The legislation is yet to gain enough traction to get through Congress, but it has not completely died either as different parties look to improve upon it. The Department of Commerce’s Internet Policy Task Force proposed in 2012 that SOPA be revised to make it a felony to stream copyrighted works.
Large busts such as the ones described above might work on a micro-level, but the fact that sites similar to what the government went to such great lengths to shut down are still around prove that the current laws are not effective deterrents and something else needs to change if the rights of copyright holders are to be adequately protected. Both infringing host web sites and web sites that provide links to host sites like McCarthy’s still exist while simultaneously claiming to be DMCA-friendly.
Despite the aims of the current provisions to curb individual infringement, service providers are still given a good amount of protection by the safe-harbor provision of 17 U.S.C. §512, which states that ISPs cannot be held liable for copyright infringement by way of storage of information by a user if the ISP has no actual knowledge of the infringing actions and acts expeditiously to remove such material once receiving actual knowledge.
The safe-harbor provision has prolonged litigation in the case of Square Ring, Inc., v. Ustream.TV. In advance of a boxing fight between Roy Jones, Jr. and Omar Sheika, Square Ring, a company owned by Jones Jr., sent notices to Ustream in the week leading up to the fight asking it to have its staff actively monitor steams of the fight. Square Ring filed a complaint in 2009 that alleged that Ustream allowed approximately 2,377 users to view the fight. It took Usteam two days to remove the steams, and this January, a Delaware district court denied Ustream’s motion to dismiss as it held that consideration needed to be given as to whether 48 hours constituted acting “expeditiously.” Ruling that 48 hours is a reasonable response time would make it nearly impossible to hold newer live-streaming apps such as Periscope and Meerkat liable for infringement that automatically delete all of their streams. Thus, the infringing stream could easily be taken down even before a notice of infringement is filed. This catch-22 is an area I plan to delve into further in my seminar paper.
Mobile streaming apps allow not just for people to infringe on live sporting events from their home while hooking up their television to a computer, but allow those attending the event to stream from their phone, thus hurting the rights holders to such athletic events. Every viewer that switches from watching a game or show on television to watching a stream of it on Ustream or Periscope hurts both ratings and subscription and pay-per-view purchases. Broadcasters rely on both ratings driving advertising and subscriptions to increase their revenue, which can be put into developing or acquiring more programming. Thus, in the case of television shows, streaming ultimately puts us, the viewers, at a disadvantage if we want to see broadcasters develop new, high-quality programming.
Clearly, this will not go away on its own. The current copyright laws were already not stringent enough to control normal posting of copyrighted works, but they are even less suited to keep up with the changing technology that allows for live streaming.
There is no definite solution to stop online copyright infringement completely as it is impossible to know with certainty how technology will react to new regulations. However, there are avenues that are yet to be tested, and in order to protect the programming of broadcasters, it is imperative that Congress act by exploring these options. Whether it be getting some form of SOPA passed that makes criminal infringement a felony and makes it more difficult to find such websites through search engines, doing away with the §512 safe-harbor provision and putting more of an onus on service providers to stop infringement or facing the constitutional challenges that come with regulating advertising on infringing sites, action needs to be taken. If the status quo remains, consequences could include higher cable prices as broadcasters that feel the hurt of online infringement on their ratings pass the costs on to consumers or a lack of incentive to create new entertainment programming if the money is not there.
As I mentioned at the beginning of this post, I am an avid television consumer and can vouch for the high-quality of television programming available today and the variety of options we have as views to find sports. But I fear that this ease with which we consume television programming and the quality and quantity of options we have could be damaged if Congress does not continue to examine the challenges copyright holders face on the Internet and take appropriate action.
Criminal Law in the Virtual Context 
When I was in high school (in 2008), I produced a thank-you video (EN1) for a service project I led, and I used “Thankful” by Josh Groban as background music. I had purchased the CD and didn’t think it was improper to use the song. I posted the video to YouTube. Within a week, I received a take-down notice from YouTube telling me I had improperly used the music in my video. I immediately took down the video and posted one without the song, not fully understanding what I did wrong. When I was reading the post and readings from this week, I remembered that situation.
There are times when I am on YouTube or when I hear about streaming services and I can’t help but wonder, “How can this content stay online and not my original video?” I often get annoyed because my video was shut down and yet others are basically getting away with intentional copyright infringements. I agree with Josh’s post and think that there needs to be more regulation when it comes to streaming services.
It seems like most technology companies are concerned with having too much of a burden when it comes to policing online activity on their sites. Something that Josh mentioned that caught my eye was that software like the kind Periscope uses has the ability to immediately take down infringing material. Maybe if that software were used across other websites, there wouldn’t be as much of a burden on the tech companies to police their own websites. I think criminalizing this behavior will deter people, however, I’m not sure if charging people with a felony is the best way to do it. I think focusing on the intent of the alleged rule-breaker will help in figuring out just how to criminalize this behavior. For example, the type of punishment that Brian McCarthy experienced seemed fair.
It will be interesting to see how future legislation evolves. I would like to read Josh’s seminar paper when he’s done!
EN1: https://www.youtube.com/watch?v=EcZ5BfEd7qQ
One thing I didn’t make clear in my wording in the post (and have since edited) was that Periscope does not automatically delete the infringing streams, but rather it automatically deletes everything, thus, the infringing ones might just be gone before anyone has a chance to send in a notice of infringement. Youtube has an algorithm that works to automatically identify the infringing streams/videos and shuts them down, and the feasibility of requiring companies such as Periscope to utilize such technology is something I plan on looking into for my paper.
Firstly, I wanted to note the quality of this weeks posting (last weeks as well). I very much enjoyed reading it and find the organization and quality to be great. (Definitely need to up my game for my week). That being said, I’d like to push a little beyond the direct scope of the posting and of the DCMA/SOPA.
The posting brought up the issue of the non-existence of a direct solution to deal with copyright infringement, and the possibility of such infringements bringing harm to broadcasters and thus consumers. I know that these effects are often brought up, however, given the prevalence of services such as Netflix, does the harm truly affect consumers in such a drastic way, or is the harm that broadcasters suffer exaggerated so as to try and “guilt” people into keeping allegiance to the “traditional”. Are the harms they suffer really so severe, or is it done out of a desire to not have to go through any sort of evolution, which would cost them money, and hold the status quo. I say this, not out of a desire to play devil’s advocate, rather out of a moderate ignorance as to the harms such infringements upon broadcasters and sports themselves (I myself am not a sports viewer).
To bring up an analogous situation (correctly I hope), is what broadcasters are currently experiencing with streaming services similar to the infringements that media companies dealt/deal with in regard to illegal music downloads? What I mean is, it is very obvious to everyone that the pervasiveness of illegally downloading music transformed and/or eradicated the music industry as it traditionally existed. The music entities had to change how money came into them, i.e. no longer relying solely on sales of music, which rapidly diminished, and transferred toward advertising. An argument that was made at the time, was that illegal downloads harmed the music industry and the artists involved. Yet, it’s been known that outside of the largest national and global artists, the big money that was generated did not actually “trickle-down” to artists, or grunt workers within the music industry. They had been gobbled up by the corporations themselves. Thus, for people whom participated in illegal downloads, it was not done out of some desire to infringe upon the copyright of media companies, rather, it was done because the mediums utilized by media companies were outdated and no longer desirable to much of the consuming population.
Responses to these attitudes paved the way for several new mediums that allowed artists and grunt workers involved in the music industry, to interact directly with consumers without having to invoke the existence of any large company. Which in many cases, simply degraded the product that consumers wanted. So, while media companies themselves have suffered losses and no longer exist to the extent they did before, or in the manner they did before, the producer-consumer relationship has been able to continue onward due to its adaption to changing technologies. So most people’s attitudes towards media companies losing revenue was not been incredibly negative.
I guess what I’m trying to get at is, if broadcasters are having their copyright infringed upon and are losing revenue because of it, with the expanding popularity of services like Netflix, etc, do we really care? If these broadcasters fall apart and crumble because of streaming services and other mediums that cut out big corporations to better facilitate a producer-to-consumer relationship, is that really such a bad thing?
I think you make some really good points and I don’t want to reply to most them in detail as I want to save a lot of the discussion for the lecture. However, I do want to point out that you are right in that the companies might not be actually hurting yet even if they claim to be, but the potential is there for them to legitimately be hurt if illegal streaming does become more pervasive. I know a ton of people our age who have simply gotten rid of cable because of the costs that comes with it and the ease with which they can find such outlets to watch their shows/sports. If enough people do this, a trickle down effect could most definitely occur.
I think that the SOPA will never be passed with the broad language that it currently has. Googles public policy director said that YouTube could not function if it had to strictly police all of its content, which the SOPA would require. If sites with as many resources as YouTube and Google could not inforce these policies without violation, then most smaller websites that include any blogs or comment sections would not be able to function without violation. The SOPA would at least greatly raise the cost of running a website.
The SOPA’s requirement that a payment or advertising network operator must cut off services to a site within 5 days of a notification from an outside party would further the cost of running the website. This requirement would put the burden of proof and costs of fighting any false allegation on the accused.
I agree with Josh that more has to be done to stop online copyright infringement but I still have not seen what I believe is an acceptable solution. I think that Josh is right when he said that Congress has to put more time and resources into exploring more options.
We talked about some of this in cyber law when I took it. Part of what we discussed was that the internet has traditionally been free from government intervention and the government wants to preserve the free market that presently exists on the internet. One thing I’ve noticed on youtube is that people will post a song by an artist, but rather than post the original song they will alter it slightly to avoid copyright infringement. People that truly don’t want to pay for a song are just going to use the altered version instead. It seems like it would be impossible to monitor every single video posted on youtube. Even if we could monitor it, I don’t think making the penalties a felony is really going to solve the problem. We would have so many people going to prison. I think the most effective way to address the problem would be as Josh discussed to have search engines filter out these sites where streaming can be done illegally. I also think that the people running these sites should be the target of the punishment. It was interesting to read about how much opposition the SOPA bill faced and how quickly the upcoming vote was postponed. There does need to be some sort of reform but it is difficult for the law to keep up with technology. Technology always seems to be ten steps ahead so I will be curious to see what solutions are proposed for the problem.
I agree with both of Josh and Brittany that reform is needed, but I don’t know how we should do it. Brittany make a good point that putting more people in prison is not the answer for this crime. I think if you take the money out of it for the violating parties, either with stiffer fines or cutting of their ability to reach the consumer, is the best way to stem the level of intellectual property theft. Once the value to the either the person streaming the content or the person compiling the links to the streams the incentive to commit the crime is wiped out.
The one problem I have with this line of thought is my belief that the internet needs to be open and free from over intrusive regulation. You do not want ISP to be able to throttle the internet speed of content providers and consumers alike without some sort of due process. So like I said before, this is a problem I do not have a real idea how to fix. I look forward to seeing what the other posters can come up with.
Though I think that copyright infringement is a problem, I agree that there seems to be no clear solution. SOPA puts too much of a burden on sites where users are uploading content, and seems like it would end up creating some effects outside of the intent behind it. I do think some of what it would be doing is good. I don’t think it would be a bad thing to go after the websites knowingly hosting illegal content.
It’s good that alternatives like Online Protection and Enforcement of Digital Trade Act (OPEN), mentioned in the “SOPA Explained” article, are being proposed. Maybe it is not the best solution, but if lawmakers can continue to propose new legislation and come up with new ideas, there may be a better way to end a lot of the copyright infringement on the internet.
I watch quite a lot of television and have no desire to stop watching shows the old fashioned way. I would not like to experience the consequences of lack of change in how things are now that Josh brought up in this post.
I would first like to say that the blog was enjoyable to read and the organization was excellent! I would like to echo what cdevarona2016 posted (sorry I don’t know your first name) because I had similar experience with YouTube removing one of my videos down many years ago. I was supposed to make a video in undergrad for one of my Biology courses and we were told to upload it to YouTube. I used music in the background that I thought was catchy and made the video more interesting to watch. However, shortly after my video was posted, I received a notification from YouTube telling me to immediately take it down and I personally did not understand the logic behind their e-mail. This blog made me realize that I should not have used the video because the song was not my own to use in the video. I can say that this blog to me was interesting not only because of my experience with YouTube but also because I love to watch television. I can honestly say that sometimes I forget to record my television show and I immediately log onto YouTube to see if someone has posted the video of my episode. I know that is pretty sad to say but I absolutely love some of my television shows and hate to miss them. That being said, once I log on to YouTube I sometimes see videos that say “This video can’t be shown because of copyright infringement.” I can say that I use to get very angry at these pop-ups but now that I have grown up and understand the laws a lot more, I know they are necessary. I think it is unfair for someone to take credit for someone’s work or for people to use someone’s music without their permission. I can acknowledge that copyright infringement is a huge problem but with technology evolving like it is, it is very difficult to control what people access and posts.
While reading Josh’s post I also thought that Brian McCarthy’s punishment was too much, especially for being a one time offender. People should be punished for copyright infringement but I don’t think that they should face jail time. Perhaps, implementing some sort of fine for those individuals would be more appropriate in my opinion.
I look forward to discussing more of this topic in class.
Hey Josh-y, great post. Really love the stuff on the DMCA, SOPA and streaming – can’t wait to see where your research goes. As you know since we took copyright together, the current copyright system is less than ideal.
It’s interesting you brought up the cost of Game of Thrones. Obviously HBO has responded to this streaming and copyright stuff by developing their own streaming service, HBO Now. It’s interesting to me because if HBO is already making money on a show that costs $6 million an episode, they are only going to be doubling down on profits. Game of Thrones has a reputation for being one of the most pirated shows ever and yet HBO still makes money. I don’t think executives at HBO are that concerned about pirating and copyright infringement.
Instead, I think it’s the small revenue intellectual property that is in the most trouble here when we think of the DMCA and SOPA. Similar to the music industry, I think that pirating has a positive impact on a lot of this intellectual property. I won’t say that that statement is always true or that a positive impact means a positive revenue, but I simply mean to say that some good does come out of pirating. The exposure alone changed the whole music industry which shifted to focusing on concerts and selling things there. The exposure of shows leads to services like Netflix and Amazon paying for those shows to be on their service to be watched.
I think with the sudden shift towards streaming, the biggest thing to worry about is ISP’s. While there is so much talk about streaming services and subscription based channels, I don’t think ISP’s will stand for this. Ultimately, I think the strong, reliable digital connection will reign supreme. I don’t think that the pay-as-you go streaming will catch on. Obviously this is all a reaction to your topic and to how companies will and are reacting to issues with their intellectual property.
The next question is: what will the government do? As others have noted, it’s not an easy answer. I think the core of the copyright law might need to be radically shifted. The current copyright laws do not adequately respond to issues with regards to the internet and streaming services. Especially in regards to Meerkat and Periscope, I don’t have any clue what can be done. It is probably wrong to completely outlaw these kinds of apps just because they might provide a vehicle for copyright infringement, but it’s similar to DVR’s. At the same time, I wonder what the harm is with a stream that deletes and saves no data and is only available in real time and not continuing copyright infringement.
I’m sure we’ll discuss it tomorrow and you will in your paper, but what can the government even do when the infringer is abroad? There are so many issues involved here, I look forward to discussing them more on Wednesday. Thanks for the info Josh.
Thanks for your post, Josh. I agree with the premise that streaming of content that is copyrighted is pervasive, but I disagree with the conclusion that it has or could have detrimental effects on the entertainment industry. SOPA and PIPA were, IMO, thinly veiled attempts to censor speech. There is no doubt in my mind that, if passed, SOPA would have had a very chilling effect on free speech. One of the tenets of our society is that free speech is our most esteemed value — over privacy, which for example, is valued more than free speech in the EU. To me, intent needs to be considered. Was Justin Bieber intending to infringe in his youtube videos that made him famous or was he just creating a form of speech as an artist?
There seems to be this argument that artists won’t be able to make a fair living if this content is not controlled. I disagree. Considering Bieber, how much did he make prior to getting a record agreement? And how much did the record label make off of him? None! Now, how has that changed? I’m pretty sure even with the rampant pirating of music, he still makes more in one year than any of us will make in our entire careers as attorneys (save those of us who may go into Personal Injury law).
My point is that most artists, if they are truly artists, want their work to be known or want to be discovered — it would seem disingenuous for Bieber’s record label to take down videos of all the “Beliebers” that are inspired by his work and stream videos that essentially glorify his work when they could be the industry’s next big ticket. To me, it is fruits of the poisonous tree. On the whole, if free speech reigns, you should end up with more Bieber scenarios than McCarthy scenarios, meaning infringers that turn out to MAKE the industry money. Also, the industry has conveniently placed “piracy premiums” in all their content for sale that mitigates completely or at least significantly ameliorates the cost of piracy. $1.29 for a song on iTunes? $125 for a ticket to a sporting event or concert? The non-pirating public is ALREADY paying the cost of piracy and the industry has no standing in my opinion to stick out their hand and ask for more (vis a vis censoring speech). I won’t complain about the price songs or concerts outside this context, so the least the industry can do is leave speech alone!
One other thing I thought interesting was the McCarthy arrest. I don’t think it would have happened if Mr. McCarthy lived in Florida. Florida is one of a few states that has a right to privacy written into our constitution. The vast majority of the steps the fed took to locate him would seem to violate a right to privacy. I usually say that I don’t see how people like him make money because who clicks on links/sponsored ad’s by videos? Well, I got the answer to my question when I clicked on Josh’s link to projectfreetv. Once there I saw links to steepto pages and one was “21 ridiculous photoshop mistakes that everyone noticed.” It piqued my interest and I welcomed the diversion. Until I clicked it and it opened a hotwire tab and another ad – it took some effort to close the chain reaction of windows. I guess that cost hotwire some money. Now that, to me, seems like an internet crime worth prosecuting. I didn’t want to see a hotwire ad, and hotwire doesn’t want to pay for ad’s for disinterested persons. Yet, an unscrupulous third party spoofed me into seeing the ad, costing hotwire money to create a profit for the spoofer. Let’s fix problems like those before we get bent out of shape over people making speech that mimics recorded works. After all, if the industry is so wholly unappealing and unfair as it claims/lobbies for, it could just dismantle itself and the employees and beneficiaries could pursue other opportunities in fields like law, education, and medicine — it’s a free country!
As someone who signed the petition to stop SOPA and all of its incarnations since then, I am very opposed to Congress’ continual attempts to pass it and laws like it. While I understand the need to cut back on copyright infringement on the Internet, the terms of SOPA were/are incredibly broad; over broad, in fact. They allowed Congress and the federal government far too much power and control over what could and could not be viewed on the internet. The best comparison I have seen is the censorship currently exercised in Australia and the United Kingdom; there are filters in place allowing government officials to determine what is and is not OK for internet subscribers to view or consume. As one of the posters above said; it’s still a free country, and I subscribe to the view that the internet needs to remain somewhat free.
This isn’t to say that I support total non-regulation of the internet; there are some horrible things out there that need to be shut down. But letting some right-wing Conservative decide what I can do on the internet simply because he has a majority in Congress at the moment isn’t something that sits well with me, copyright issues notwithstanding. I agree that there need to be protections for copyright holders and producers in place, but not at the expense of individual liberties. Most copyright holders can afford to take a monetary hit, but an individual can only lose so many personal freedoms before we pass a point of no return.
Quite a lively exchange going on with this posting. It may be a generational issue, but I am not so inclined to let the ISP providers off the hook. Violation of copyright is a serious legal matter. Some of you have asked why publishers and music companies fight so much over this issue. But, if you don’t fight to protect your intellectual property , you may lose the rights to your intellectual property. This is a very serious consequence for the holders of the right.
It is true that the legislation proposed so far has not been adequately tailored to address the legitimate worries of the copyright holders, but what legislative language might be more useful? That discussion will probably exceed the scope of today’s class, but it is something which we should look at before the semester is over.
Here are some questions for later:
Josh – nice work, perhaps you can be prepared to explain what the two apps you mentioned actually do. And add a link to the DMCA at the beginning of the piece.
For the class: Did the criminal provisions in SOPA apply to small time violators or is the law trying to get at the big time offenders (perhaps think about someone who sells 5,000 copies of a pirated movie)?
Will there ever be a situation involving piracy where criminal penalties would be appropriate?
I would like to hear more about why you think ISP providers should not be required to monitor their sites for illegal content.