I've been getting absolutely tons of emails and tweets about Senate Bill 978, which was introduced for consideration into the Senate a few weeks ago -- the conventional wisdom about the bill is that it'll make almost all streaming of copyrighted video criminally illegal if you don't have the permission of the copyright holder, with scary fines and even jail time as potential consequences. In particular, people seem to be extremely worried about video game run-through videos, or "Let's Play" videos, especially since they often consist of nothing more than someone playing the game -- it's not necessarily easy to pull that type of video under the umbrella of fair use, since they lack any additional comment or criticism. Needless to say, people are freaking out.

I'm not a huge fan of S.978, since I don't think adding additional criminal penalties to our broken model of copyright law is very smart -- the system is already hugely imbalanced in terms of liability. But I also think some of the outcry here is a little overblown, as the text of the bill isn't quite as bad as you might think, and it certainly doesn't make anything illegal that wasn't already problematic. Unauthorized gameplay videos are already skirting the boundaries of the law, and if game companies wanted to file civil lawsuits against "Let's Play" authors they could start today without needing any additional laws on the books -- it would be just like a lawsuit for illegally copying and sharing music or movies without permission. It doesn't matter that you're just recording the gameplay and not copying the game itself -- you're still making a copy without permission, and that's all it takes to get in trouble. (The same goes for karaoke videos, or clips of sports, or whatever -- in order to make a copy of someone else's content, you generally need their permission.)

So if nothing major is really changing, why is S.978 getting so much attention? Let's walk through it.

First things first: why is S.978 even being considered? Current copyright law already has serious criminal penalties on the books for copying and distributing copyrighted works without authorization -- all that FBI warning screen stuff above -- but streaming content without permission is only a misdemeanor under the current law, which means federal prosecutors can't really go after illegal streaming services with the same force as they pursue other types of copyright infringement. Thus, S.978 is designed to "harmonize" the law and give prosecutors the same tools to use whether they're pursuing an illegal counterfeiting ring or an illegal movie streaming site. There's nothing specific in there about sending kids to jail for uploading game videos to YouTube. But we'll get to that.

Now, there's a lot of debate about whether or not the law actually needs to be "harmonized," but at the most basic level, all S.978 does is take the existing penalties for criminal copyright infringement -- up to five years in jail, massive fines -- and say they apply to unauthorized "public performances," which theoretically encompasses streaming. (That "public performance" language is weirdly broad and ridiculous, if you ask me: if Congress is going to write a law that purports to deal with illegal streaming services, I think it should come right out and say "streaming." But I digress.) So let's delve into S.978 itself and see exactly what's going on. Here's the first line:

(a) Amendments to Section 2319 of Title 18- Section 2319 of title 18, United States Code, is amended--

Exciting, isn't it? You're looking at the machinery by which new laws are inserted into the existing United States Code -- the real nitty-gritty. S.978 inserts new provisions into subsection (b) of 18 U.S.C. 2319, which lays out the penalties for criminal copyright infringement. That means that S.978, if enacted, will be part of 18 U.S.C 2319 (b), not its own law. That's important: it means our very first step should be to go and read 18 U.S.C 2319 (b), because we can't understand S.978 without it. So! Here's the opening line of 2319 (b):

(b) Any person who commits an offense under section 506 (a)(1)(A) of title 17—

Well, look at that -- yet another reference to a different part of the United States Code. This time it's 17 U.S.C 506, which defines criminal copyright infringement. Even more specifically, it's 506(a)(1)(A), which consists of exactly one hugely important condition:

(a) Criminal Infringement.—

(1) In general.— Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—

(A) for purposes of commercial advantage or private financial gain;

(My emphasis.) So even before we've gotten to the meaty parts of S.978 that have caused all the panic, we've uncovered a hugely important caveat: the new law only kicks in if there's willful copyright infringement for commercial advantage or private financial gain. I can't stress this enough: S.978 will never exist by itself -- the actual law will be a potentially-updated version of 18 U.S.C 2319 (b), and it will only apply to people who try to make money by willfully streaming unauthorized content. And as it turns out, "willful" is a very important word.

"Willful" infringement in the criminal context generally means that you know you're breaking the law but you're doing it anyway -- the US Attorneys' Manual calls it "a rare but significant exception to the maxim that 'ignorance of the law is no excuse.'" That's why DVDs and Blu-rays have that unskippable FBI warning screen -- it's easier for the industry to say people know the law when it's blasted in your face every time you watch a movie. But that warning doesn't cover streaming, so just imagine a prosecutor trying to convince a jury that some YouTube kid making gaming videos knew she was committing willful copyright infringement. Seems like a real winner, right?

Okay, so now that we know people who intentionally stream unauthorized content for money are criminally liable for something, let's see exactly what's going to get them in trouble. It's spelled out in the next section of S.978 -- the one that has everyone all in a tizzy. (Remember, this section is being inserted into 18 U.S.C 2319 (b).)

(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if--

(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

(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;

It's (2)(A) that's causing all the trouble here; people are calling it the "10-strikes" law. It's fairly harsh, since it doesn't distinguish between full-on game run-throughs or little clips of scenes -- it's just any 10 streams, whether it's 10 people watching one video or one person watching the same video 10 times. But remember, you've got to read this in the context of the law it amends: the rule only applies if you willfully infringe a copyright for commercial advantage or personal financial gain. In extremely simple terms, it means you're liable for criminal copyright infringement if you:

  1. Know copyright law forbids unauthorized streaming;
  2. Decide to infringe someone's copyright anyway;
  3. For commercial advantage or personal financial gain;
  4. By streaming 10 or more copyrighted works without permission;
  5. During a 180-day period; and either
  6. Consumers buying access to all those streams from the copyright holder would spend a total of $2,500 or more; or
  7. You've made $2,500 or more illegally streaming those works; or
  8. The fair market license fees to those streams total more than $5,000.

That "and" I've bolded is crucial -- just streaming 10 videos in a 180 day period isn't enough to trigger the statute. The prosecutor will have to show some very specific economic damages, and I'm going to go out on a limb and say that most videos on YouTube or wherever aren't racking in $2,500 every 180 days. In fact, I'd wager that most videos on YouTube aren't making their authors any money at all, which means this statute won't affect them -- it'll affect YouTube, and Google has an army of attorneys handling both licensing and dealing with unauthorized content. (If you're making a significant amount of money as a YouTube channel partner, well, you should already have your content licensing bases covered -- you're running a business, and that means you have responsibilities. Welcome to the real world.)

What's more, it bears mentioning that the criminal law of the United States doesn't just kick in to send people to jail automatically -- prosecutors are given broad discretion in deciding what cases to file, and any federal district attorney that thinks it's wise to bring criminal cases against kids for running profitable YouTube channels is probably committing career suicide. (It would be almost exactly like a federal DA prosecuting kids for ripping DVDs or dubbing VHS tapes back in the day, actually.) It's also rare for a criminal copyright case to go forward without a corresponding civil case brought by the copyright holder, and I don't think gaming companies are going to go after their biggest fans because a new criminal law was passed. Hell, they could all be suing fans under the much stricter civil copyright law for posting unauthorized videos right this very second, and they're not doing it. Why would they risk such an intense backlash by starting now? Anyone want to go after JuneyBug and tiniestbit here?

In fact, all this hoopla could result in some good news: Minecraft developer Notch has said he'll add a clause to the Minecraft user agreement specifically allowing user gameplay videos if S.978 passes, and that he expects most other companies will follow suit. That would be wonderful -- game companies explicitly granting users the rights to make gameplay videos would be a huge step forward, and exactly the sort of private contractual agreement that our intellectual property system favors. I’d love it if Notch just went ahead and added that clause regardless of what happens to S.978 -- it would set a terrific precedent for the rest of the media industry.

All that said, I'd much prefer it if S.978 died in committee; I think it's a terrible idea to create additional copyright liability of any kind before we balance the system and make it easier and clearer for people to assert their fair use rights. That's the fight worth having, don't you think?