On May 12, 2011, senators KLOBUCHAR, CORNYN, and COONS introduced the S.978 bill to amend the criminal penalty provision for criminal infringement of a copyright such as:

‘‘(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;’’

which means that this type of acts are clearly a felony. In the United States, felony is for serious crimes whereas misdemeanor is for lesser crimes. Felony risks more than one year of jail. (It is similar to the French distinction between crime and délit). It provides also some minimal thresholds…

The second set of changes is the systematic addition of public performance to the litigious conditions. Currently, streaming illegal content was not a felony because it was often in the group of public performance rather than reproduction or distribution which were already covered by the law.

In other words, using DDL sites, such as RapidShare or MegaUpload, to illegally stream copyrighted content may become a felony.

The obvious targets are the streaming sites. Nevertheless, the modification may also apply to people who post illegal content on YouTube or to people who would put a link to an illegal YouTube content on their web site/page. Terry HART makes an interesting, well-documented analysis on this “side channel” consequence on copyhype site.

The bill is currently under the scrutiny of the Committee on the Judiciary.

Yesterday, Steve Jobs announced many new things (iOS5, Mac OS Lion, iCloud…). Among them, there is one that interested me: iTunes Match. Here is the description you find on Apple’s site:

If you want all the benefits of iTunes in the Cloud for music you haven’t purchased from iTunes, iTunes Match is the perfect solution. It lets you store your entire collection, including music you’ve ripped from CDs or purchased somewhere other than iTunes. For just $24.99 a year.

Here’s how it works: iTunes determines which songs in your collection are available in the iTunes Store. Any music with a match is automatically added to your iCloud library for you to listen to anytime, on any device. Since there are more than 18 million songs in the iTunes Store, most of your music is probably already in iCloud. All you have to upload is what iTunes can’t match. Which is much faster than starting from scratch. And all the music iTunes matches plays back at 256-Kbps iTunes Plus quality — even if your original copy was of lower quality.

Thus, Apple most probably uses an audio fingerprinting technology that identifies a song, and then Apple proposes in iCloud the same song with top quality. Although the site describes only songs that “you’ve ripped from CDs or purchased somewhere other than iTunes”, in fact it will also work for illegally downloaded songs! In other words, for 25$ per year, you switch to the legal side (at least if I understood well that the service does not oblige you to purchase the songs).

There is no free lunch (or near free lunch). Where are the limitations?

• There is an upper limit on the number of songs.
  

  Limit 25,000 songs. iTunes purchases do not count against limit.

  This is probably not too constraining. 🙂

• The upgraded songs are accessible as long as you subscribe to the service; Would you cancel it, then you will loose all songs that were not purchased through iTunes.
• It is not clear to me, if the scanning is done only once when you subscribe to the service, or continuously. If it is the first case, then you will have to purchase new songs through iTunes to enlarge your collection in addition to the subscription. If it is the second case, then there is an obvious method to enlarge your collection with only the price of the subscription. You “just” have to download the illegal version of a song that iTunes Match would then replace by a legal one.

Whatever the answer for the scanning frequency, it is an interesting answer against piracy. Furthermore, it is a marvelous way to lock-in the customers. Once you start to use such a convenient service, you cannot switch back to a less convenient one. In other words, you’re locked in (see Dan Ariely’s book “Predictably Irrational”).

If someone has the answer to my question, please tell it. It makes a serious difference in the cost analysis for customers.