The S.978 bill

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.

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