SOPA and Bill S.978: How it All Began

We are entering an age in which legislators are trying to decide how they can extend the arm of the law to cover the vast amorphous landscape of the World Wide Web. Two bills, SOPA and S.978, were recently proposed that have resulted in an unfavorable reaction from Internet users.

Bill S.978, or the Commercial Felony Streaming Act, was proposed by Senators Amy Klobuchar (D-MN), Chris Coons (D-DE) and John Cornyn (R-TX) on May 12, 2011, and was met with sensationalized media coverage that relied heavily on the question “Could Justin Bieber be sent to jail by S.978?” This is primarily due to Bieber’s early reliance on posting covers of songs on his YouTube channel, which eventually allowed him to rise to the level of fame that he has acquired today. However, S.978 is not necessarily bent on prosecuting YouTube users.

Under the current Copyright Act, streaming is classified as a performance of copyrighted material. The unauthorized streaming of copyrighted materials, such as posting a video utilizing copyrighted music on YouTube, under the Copyright Act, is a misdemeanor.

“[The Commercial Felony Streaming Act] ratchets up the streaming penalty so that it matches, basically, the penalty for distributing or reproducing,” said Jake Linford, Assistant Professor in the FSU College of Law. “[Streaming is] a performance. The copyright owner has an exclusive right to that. If I infringe the performance right, currently, the copyright owner could sue me and seek civil damages, or there could be criminal action, but the criminal action is just a misdemeanor, it’s like a parking ticket, it’s not a lot of damages, not a lot of jail time. And they’re trying to ratchet that up.”

Despite the bill’s proposed increase in the penalty for this copyright infringement, there are several conditions that must be met before someone could be prosecuted. The first, and fairly easy condition to be met is that there must be at least 10 streaming incidents over a 180-day period.

Next, for a penalty to be incurred, the video would have to result in commercial value. The amount of money that the copyright holder would license the material for would have to be more than $5000. Additionally, the amount of money made by the copyright infringer must be at least $2500.

YouTube does pay users that manage to produce highly popular videos, however, the amount that a YouTube user makes on a particular video that infringes on copyright would have to exceed $2500 for them to be prosecuted for streaming.

According to Linford, the bill targets people who are engaged in things like pirating television shows or movies.

“They’re going to be going after people who are copying whole episodes of Game of Thrones and putting it online so that people don’t have to pay HBO whatever you would normally have to pay HBO to stream the thing through authorized channels. That’s the kind of stuff, where you’re cutting into HBO’s market, where there’s probably more than $2500 on the line. Those are the kind of folks that you imagine the government going after,” said Linford.

Despite the fact that the intent of the legislation is to target people that are cutting into copyright holders’ profitability in the marketplace, there is the possibility that this legislation could affect musicians posting cover songs on YouTube.

“I play in a cover band and we play a lot of cover songs, and that’s the way that we build a lot of rapport with the audience is to play songs that they know,” said Peter Lebhar, a Family and Child Sciences major at FSU. “I know a lot of musicians who try to get people to look at their own stuff by playing a cover and that gets a lot of hits and then they go check out the artist’s original material.  So that could hurt a lot of artists.”

Another bill regarding internet-related legislation is SOPA, or the Stop Online Piracy Act (H.R.3261), which was proposed on October 26, 2011 by Representative Lamar Smith (R-TX), as well as 12 other sponsors.

Currently, the government has the ability to take down websites providing illegal access to copyrighted material as long as the websites are based in the United States. However, foreign websites are not subjected to US law. SOPA would allow for the government to obstruct the sites’ availability to Americans by disallowing search engines to list their URLs in search results, blocking internet service providers like Comcast from providing access to them, and preventing companies like PayPal from doing business with them. If the foreign websites want to react to these measures, they are then subjecting themselves to the US court system, thereby subjecting them to US copyright law.

The reaction to this bill on the Internet has been quite extensive. There is a large grassroots movement online that is joined by big companies like Google, Facebook, Microsoft and Intel. They believe that the bill allows for too much governmental interference with regard to the Internet.

A Political Science major at FSU, who wishes to remain anonymous to avoid prosecution for her usage of foreign websites providing access to copyright infringing material, believes that the legislation will be ineffective.

“Sometimes, streaming sites are the only way to watch shows. If there is a legal alternative, such as Hulu, I will use it, but sometimes networks block certain shows and illegal streaming is the only way to watch,” said the anonymous student. “If they block Americans from funding these sites, they’re not blocking them from watching them. Certainly some sites will be forced to close, but people from other countries will finance the sites. Honestly, the networks and studios should be happy we even bother watching their shows or movies. Not only are we consumers, but we are their best advertising, and if I can’t watch the show, I won’t be able to convince anyone else to.”

Interestingly, the platform that legislators are trying to inhibit, the Internet, is the very same platform allowing dissenters to make their voices heard. Stay tuned for further coverage of these issues online and in our print publication.