By , June 07, 2011.

The Senate Judiciary Committee is set to consider legislation that would make unauthorized public performance of a copyrighted work a felony.

Currently, only unauthorized reproduction and distribution can incur felony charges under criminal copyright infringement provisions — violation of other exclusive rights, like public performance, is considered a misdemeanor.

Bill S. 978 (referred by some as the “Commercial Felony Streaming Act” or “Commercial Felony and Streaming Act”), introduced May 12, 2011, provides for a maximum 5 year prison sentence if “the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and 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 the total fair market value of licenses to offer performances of those works would exceed $5,000.”

The MPAA explains the reasoning behind the proposed legislation:

While existing law provides felony penalties for willful copyright infringement, such penalties only apply to defendants who illegally reproduce or distribute the copyrighted work. Due to technological advances since enactment of these penalties, copyrighted content can now be illegally streamed, not just downloaded, online. However, it is unclear whether Internet streaming constitutes distribution of copyrighted works, and therefore eligible to be prosecuted as a felony.

Internet streaming of copyrighted works clearly implicates the public performance right, and thus can be subject to criminal liability currently if done willfully and “for purposes of commercial advantage or private financial gain.” Due to the lack clarity surrounding the felony offense, however, prosecutors are reluctant to pursue cases against even the most egregious, illegal Internet streaming services. Indeed, prosecutors tend to focus their limited resources and manpower on prosecuting felony offenses that might result in significant jail time because such prosecutions have the greatest deterrent effect.

Newly appointed Register of Copyrights Maria Pallante testified to the Judiciary Committee in support of the legislative goals of the Act earlier this month. Echoing the MPAA’s explanation for the need of the bill, she added:

One might ask why it is not sufficient to prosecute streaming as a misdemeanor.  The fact is, as a practical matter, prosecutors have little incentive to file charges for a mere misdemeanor. This means that, compared to similar infringing conduct involving the large-scale making or distributing of copies (e.g. DVDs of a movie), streaming is not only a lesser crime on the books, it is a crime that may never be punished at all.  As a matter of policy, the public performance right should enjoy the same measure of protection from criminals as the reproduction and distribution rights; prosecutors should have the option of seeking felony penalties for such activity, when appropriate.

Though the proposed legislation makes only a nominal change in the law and is broadly supported, it has attracted some concern that it could cover a wide range of common activities online — some have even suggested that if the bill passes, the government will start throwing people in jail for embedding infringing YouTube videos.

What counts as a “public performance” online?

The US Copyright Act gives creators of “literary, musical, dramatic, and choreographic works” the exclusive right “to perform the copyrighted work publicly.” 117 USC § 106(4). It also states that “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.” 217 USC § 101. Finally, the Act states that “to perform or display a work ‘publicly’ means—(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Though the application of the public performance right continues to evolve in the online arena, the law generally distinguishes between downloading and streaming, with downloading constituting a reproduction and streaming constituting a performance. 3See, for example, US v. ASCAP, 485 F.Supp.2d 438 (SDNY 2007).

The Second Circuit has taken a broad view of who can be directly liable for infringement of the public performance right online. The court has adopted the conclusion of the Southern District in New York that “Congress intended the definitions of ‘public’ and ‘performance’ to encompass each step in the process by which a protected work wends its way to its audience.” 4David v. Showtime/The Movie Channel, Inc., 697 F. Supp. 752, 759 (1988), quoted in NFL v. PrimeTime 24 Joint Venture, 211 F.3d 10, 13 (2nd Cir. 2000). In other words, the fact that one service provider has permission to publicly perform a certain work doesn’t by itself give users or services permission to “re-publicly perform” that work — the same is true in the offline world, which is why public establishments like bars and restaurants need a license to play music for their customers even when that music comes from a radio playing music from stations that themselves are licensed to publicly perform works. 5See Broadcast Music, Inc. v. Claire’s Boutiques, 949 F.2d 1482 (7th Circuit 1991). Other circuits seem to embrace this interpretation as well. 6For example, the 7th Circuit cites to David in Video Views v. Studio 21, 925 F.2d 1010, 1020 (1991) to support its statement that “the Copyright Act contemplates a broad interpretation of the concept of ‘public performance.'”

Perhaps the broadest interpretation of what is a public performance was made by a district court in Texas in Live Nation Motor Sports v. Davis. 7No. 3:06-CV-276-L. (ND Texas 2007). There, the court found a defendant liable for copyright infringement for merely linking to (rather than embedding) the plaintiff’s webcast without permission. Though this case rightfully raised concerns, its interpretation doesn’t seem to have been adopted by any other court.

Some have argued that the Ninth Circuit uses a different test for determining liability for direct infringement of the public performance right, based on that court’s decision in Perfect 10 v. Amazon. 8For example, Evan Brown, Enthusiast website owner enjoined from streaming webcasts of racing events, Internet Cases blog (Dec 22, 2006); Jason Lunardi, Guerrilla Video: Potential Copyright Liability for Websites that Index Links to Unauthorized Streaming Content, 19 Fordham Intellectual Property Media and Entertainment Law Journal 1077, 1113-14 (2009). The court there used what it called the “server test” — direct infringement of a public display right only occurs when the content is copied on the service provider’s own server — not, for example, when it is displayed through inline linking or framing (though such a server provider may still be indirectly liable).

But I think the Ninth’s holding in Perfect 10 is only limited to the public display right and doesn’t extend to the public performance right. The Copyright Act defines the display right as showing a “copy” of a work, and the court based its conclusion largely on this inclusion of the word “copy” in the definition. 917 USC § 101. It said, “Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy.” 10508 F. 3d 1146, 1160 (2007).

Unlike the definition of “display”, the definition of “performance” in the Copyright Act doesn’t require a “copy”. Thus, the question of where the actual content is hosted is irrelevant to whether a public performance has occurred. As far as I can tell, no court has applied the “server test” in the public performance context, so I think it’s reasonable to say there’s an open question about whether the Ninth Circuit takes a different approach than the Second in determining who is liable for violating the performance right online.

Will S.978 Put You in Jail for Embedding Infringing Videos?

Despite the breadth of the public performance right, civil lawsuits against individuals alleged to have infringed it online are rare — Live Nation Motor Sports is the exception rather than the rule. The worry that S.978 will lead to prisons overflowing with people for sharing online videos that happen to be infringing is overblown.

The standard for establishing criminal copyright liability is much higher than civil liability. Prosecutions for criminal copyright infringement under existing law are rare. According to the Administrative Office of the US Courts, less than 50 people are charged with a criminal copyright offense every year. 11Caseload Statistics 2010. There’s no reason to think that this number will change drastically because of S.978.

Other factors support the idea that most internet users have no reason to worry about this bill. The Department of Justice’s Prosecuting IP Crimes Manual lists several considerations for US Attorneys to keep in mind when deciding whether to bring charges. Among the considerations specific to IP crimes:

  • Federal criminal prosecution is most appropriate in the most egregious cases.
  • Limited federal resources should not be diverted to prosecute an inconsequential case or a case in which the violation is only technical.
  • Federal prosecution is most appropriate when the questions of intellectual property law are most settled. Victims have a broad range of civil remedies that include restitution, damages, punitive or quasi-punitive damages, injunctions, court costs, and attorneys’ fees.
  • The sources or manufacturers of infringing goods and services are generally more worthy of prosecution than distributors.

There are many other considerations that limit the application of criminal copyright infringement laws to only the most egregious pirates. No one need worry about facing jail time for sharing videos online should S.978 pass.


1 17 USC § 106(4).
2 17 USC § 101.
3 See, for example, US v. ASCAP, 485 F.Supp.2d 438 (SDNY 2007).
4 David v. Showtime/The Movie Channel, Inc., 697 F. Supp. 752, 759 (1988), quoted in NFL v. PrimeTime 24 Joint Venture, 211 F.3d 10, 13 (2nd Cir. 2000).
5 See Broadcast Music, Inc. v. Claire’s Boutiques, 949 F.2d 1482 (7th Circuit 1991).
6 For example, the 7th Circuit cites to David in Video Views v. Studio 21, 925 F.2d 1010, 1020 (1991) to support its statement that “the Copyright Act contemplates a broad interpretation of the concept of ‘public performance.'”
7 No. 3:06-CV-276-L. (ND Texas 2007).
8 For example, Evan Brown, Enthusiast website owner enjoined from streaming webcasts of racing events, Internet Cases blog (Dec 22, 2006); Jason Lunardi, Guerrilla Video: Potential Copyright Liability for Websites that Index Links to Unauthorized Streaming Content, 19 Fordham Intellectual Property Media and Entertainment Law Journal 1077, 1113-14 (2009).
9 17 USC § 101.
10 508 F. 3d 1146, 1160 (2007).
11 Caseload Statistics 2010.


  1. Great analysis as always. I didn’t know that about public display vs. public performance. Thanks for the info.

  2. Its very easy to see who this website works for! Trying to take or freedoms away from Americans and make more money for hollywood by twisting the truth this is just a PR website set up by the recording industry! the same people who made this bill own this site I just checked the records!

    • It’s going to be very hard to believe you when you aren’t linking to the information given…

  3. So the gist I am getting here is that you feel that it should be acceptable to give the government legal authority to jail people for embedding “unauthorized” YouTube videos by crafting broadly-worded, flexible statutes to that effect, so long as our government officials promise to use their personal discretion in not enforcing it too strictly.

    Is that essentially your position?

    Wouldn’t it be more ideal to craft laws which explicitly prevent authorities from criminalizing the activity at hand?

    Felony criminal statutes ought to be narrowly tailored in my opinion. Otherwise it invites government abuse.

    • No, that’s not my position at all. The provision here is as narrowly crafted as the currently existing provisions concerning reproduction and distribution — provisions that, as I’ve pointed out, have been brought against very few individuals over the past decade. Posting a photo that may be infringing on a web site is probably as common as embedding a YouTube video that may be infringing. The former has never been criminally prosecuted and there’s no evidence that that situation will change for the latter. What you call “promises” by government officials are not; I highlighted only a few guidelines given to prosecuting attorneys that are not arbitrarily made out of the kindness of their hearts but based in large part on established legal principles.

      • fuck you! stop giving more power to the govt fucking entertainment industry

      • Every time someone clicks on the link, it will be counted a performance for legal purposes, meaning that essentially anyone embedding a video will meet the ten performances criterion. A more useful analysis would cover the means of establishing the value of the performances, or the “fair market value” of the licenses. Unless this is well-defined, the law is indeed too vague for comfort.

        Your further point that these statutes have rarely been exercised would be more comforting were it not that the entire purpose of the bill is apparently to encourage such prosecutions.

    • Are you not outraged that the government can do this already for the reproduction and distribution of copyrighted works? Copyright laws evolves to meet advances in technology. In 1976 Congress addressed unlawful physical reproduction and distribution of copyrighted works, and today it addresses unlawful online streaming (only by way of increased penalties). The fact that individuals could be more severely prosecuted for breaking the law carries no weight with me.

  4. Words of wisdom handed down today by Justice Scalia. Words that you should take to heart Terry, in your quest to give content industries the expanding benefits of state police powers –

    What does violate the Constitution is approving the enforcement of a [criminal] statute that does not “give a person of ordinarily intelligence fair notice” of its reach, United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement.
    * * *
    We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

    Sykes v. U.S. (Scalia dissenting)

    • I am not at all sure one can persuasively argue that the criminal provisions of copyright law are “fuzzy”. I daresay Justice Scalia would agree.

      • Anybody who says that hasn’t thought about how section title 17, chapter 1, section 107, a law which makes the entire title fuzzy by nature of its very inclusion, might relate to keeping copyright law inline with the established boundaries of the the First Amendment of the U.S. Constitution… Like for instance, how courts have ruled against obscenity being protected because “only socially contributory speech is protected.”

        Not that I necessarily agree with that sentiment (I’d actually say obscenity should be prohibited due to the people’s implicit right to not be harassed) however as things are it still illustrates the point.

    • I don’t see how Scalia would have a problem with these provisions. As an originalist, he’d welcome Congress actually exercising a power defined in the Constitution.

    • I don’t really follow you, Justin. How does this law suffer from vagueness?

    • Perhaps Scalia might be interested in pushing more for less laws passed through Congress?

      Unfortunately, Scalia’s “originalist” ideals mean that SCOTUS have tended to expand the power of Congress, by weakening the Supreme Court. I’m sure this bill could go to the Supreme Court eventually, but even I have my doubts when most of what has been ruled on by the 9 Justices has been very detrimental to society in general.

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  6. Check out this Riverfront Times article on Bill S. 978, including what it is, what it could mean and what you can do about it. Here’s the link below:

  7. From what I think I’m reading, your take is that though this bill would give the government the ability to jail citizens for streaming a video, yet you don’t think prosecutors will actually do it because they’re too “busy”

    This has two possible endings:
    1) It damages other laws, because this one is arbitrarily NOT enforced.
    2) it’s just another law to ensure that the federal government can charge any given citizen with a felony at any given time.

    Frankly, I don’t trust the government enough not to arrest me for attaching a streaming video to my Facebook stream. From my point of view, if a bureaucrat can make your life miserable, they will. It’s in their nature to torture the common people, it’s a form of power-trip. As such, they’ll probably happily grab this bill and enforce it at every turn. No, if you give a prosecutor the chance to charge you with a felony, they will, and then throw a conspiracy charge on top of it for good measure.

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  13. Apparently nobody here has ever driven a car, because the police can claim “reckless driving” over anything that you do, anything at all, even nothing. (sitting at a green light too long = “reckless driving” because someone might run into you.) And once you’re a reckless driver, they can jail you and impound your vehicle.

    I therefore believe that all traffic laws of any kind should be abolished, because they’re just too easy for the government to abuse.

    Oh, what, that seems unreasonable? That sounds crazy? Welp. Here we are, then.

  14. BlueColarCritic


    This is where the results of one action spawn something other then what was originally intended or at least other then what was originally promised. And we know that government would never pass a law that would do something undesired.

    For example they, meaning government, would never pass a law stating it’s to protect us from bad men in turbans with box cutters and then end up using that law to prosecute legal American citizens who dare to use an illegal substance?

    And they certainly would never do something like try to pass law that curtails free speech along the lines of being charged with a felony for sending an email, a single email, to your elected representative in government voicing your unhappiness (without using any foul language) with their actions as your representative.

    And they certainly would never do something as treacherous as sending a SWAT team, which is a group of trained law enforcement who are heavily armed in assault gear, to someone’s house for simply being over due on a government loan such as a student loan.

    Or Would they? In fact that’s exactly what government HAS done.

    The hard truth is government is very big on saying and promising one thing only to do something else entirely and that’s exactly what will happen with this garbage if it makes law.

    You may honestly believe there is nothing dangerous about this; I don’t know you well enough to say either way. But I do know government has a track record and it’s a very bad one when paired with big corporate, at least bad for the average citizen. These large media conglomerates don’t spend millions to billions of dollars just to ensure that their artists get paid what they deserve and if you believe they do then you’re either an insider parading as an unbiased blogger or you need to open your eyes and take a good hard look around and see what’s going on.

    • While I don’t necessarily think the examples given are precisely relevant to the discussion, the sentiment is something I verily much agree with. The unintended consequences of the continued expansion of copyright laws like this can have people innocuously committing crimes where nobody’s really harmed.

      Let’s say somebody puts up instructional videos up on their website that shows how to run computer programs like Microsoft Windows, Adobe Acrobat or Turbo Tax? Do you know that these programs, alongside all associated imagery are protected by copyright? Pendent on how we measure the value of these ‘performances’ it’s very possible that somebody seeking to help others actually use the productivity tools required to do their job could be imprisoned for the act of committing a felony.

      But Tonepoet, this would naturally qualify as “fair use” you might think? Maybe, maybe not. ‘Fair use’ has a small variety of factors to consider and its mostly up to the court’s discretion as to how they all weigh together to make something qualify. If Microsoft or Novel makes the argument that they charge a dollar per minute for tech support, a detrimental effect on their tech support “market” can be shown. If we multiply this figure by the number of views, a simple 10 minute video with only about 100 views could be shown to be worth $10,000 worth of damages, which is far more than enough to be persecuted.

      Don’t think the courts would be so retarded as to rule out the nature of the work as being beneficial? You’ve just simply ‘got’ to read up on Mai vs. Peak to see how people turning your computer on for the purposes of repairs constituted a licensing violation.

      Am I still not earning your sympathy? Well then imagine a mother who uploads a clip of her child dancing to a particular track to show her friends and family, getting notice that she’d committed copyright infringement because ‘somebody’ feels they can’t sell enough copies of a song like “Let’s Go Crazy” with the video up or have to ‘defend’ their song’s trademarks or face setting bad precedence. Before the worst that would be likely to happen is that the video gets pulled down due to a cease and desist.

      If this bill passes, it would then be possible to drag this mother into court under threat of imprisonment. A legal battle such as this could theoretically drain the funds necessary to care for her kid or even worse, put a conviction on her record which are both factors that could ultimately weigh unfavorably upon her ability to raise her child responsibly in Child Protective Service’s eyes.

      Legislatively speaking, copyright’s very strong as it is, let’s not risk making too strong.

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