Saturday, December 12, 2020

Congress considers making streaming copyrighted material a felony? Also CASE Act looks likely to pass


Michigan, covered bridge, 2012

Hoeg Law ("Virtual Legality") has a video Friday, Dec. 11,  “Streaming a Felony? On Twitch and Copyright Infringement”.

Senator Thom Tillis’s (R-NC)  “felony streaming policy” has apparently not been formally introduced yet, ‘

Nathan Grayson describes the proposal on Kokatu, and Protocol also has a brief description.

Hoeg’s main point is that US code already provides for criminal prosecution for copyright infringement, at a misdemeanor level.  You can go to jail for a year (however rarely this really happens!).  The proposal might enlarge the possible prison terms.  But the US DOJ generally is interested in prosecution only in the most egregious cases, on a large scale, associated with racketeering, trafficking, and other familiar crimes. That is not likely to change (under Biden).

The bill might become part of the “stimulus” next week, which is urgently needed for the enormous hardship and threatened evictions out there because of the lockdowns.

It is also likely that the CASE Act will pass as part of the package.  I have covered it before. It would probably take the Copyright Office most of 2021 to get up and start running its “Tribunal”, after publishing all the rules in the Federal Register.

What we would hope is that Copyright Office will have administrative protections against intentional trolling.

There is also the right to request a trial (you would have 60 days to respond).

But trolling of copyrighted material and patents is a tremendous problem.  It’s rather like selling debt. Generally, when someone offers intellectual property to the world but does not make money from selling it with their own operations, there is an invitation to problems.  That was a point of my “Dangerous Thought Experiment” video on my channel in April 2018.

Quantico creek, VA

UPDATE: Dec. 13:  

One idea might be for the Copyright Office to promulgate a policy prohibiting claims from those not making direct income from their said intellectual property.

 I don't know whether the law allows the Copyright Office to do this;  the Biden administration could request that kind of change if necessary. This echoes the "commercial viability" clause in YouTube's changes announced in Nov. 2019.  Generally, property owners can transfer the right to income to other parties, rather like selling debt or stock options.  But that is also a problem, as we know, with patent trolls. But it might be wise to prohibit claimants who have done this from using the CASE Act. This also remind me of the hidden controversy about political websites whose funding is not transparent, an issue I have often discussed before.   Mike Masnick discusses the possible "unconstitutionality of the CASE Act on Techdirt Dec. 1. 

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