Klobuchar Streaming Bill Language Causes Concern

WASHINGTON, July 11, 2011 – Proposed legislation introduced last month with the intent to target digital pirates whose activities hurt American jobs has instead raised the eyebrows of critics, who worry the bill would adversely affect millions of YouTube users.

“Intellectual property is vital to our nation’s economy, and our businesses rely on trademark and copyright laws to protect innovative ideas and products from theft,” said the measure’s primary sponsor, Sen. Amy Klobuchar (D-MN) in February of this year before she introduced the bill.

Digital piracy crippled the American music recording and film industry and in turn hurt American businesses to the tune of $200-250 billion and affected millions of American jobs, according to 2005 estimates from the U.S. Trade Representative published in a 2009 study by the RAND Corporation – a nonprofit research organization. Motion Picture Association of America (MPAA) and Recording Industry Association of America both favor the expansion of criminal penalties from uploading and downloading content illegally to include illegal streaming of music, movies and other content.

“On behalf of a music community that has lost thousands of jobs to piracy, we are frustratingly familiar with the damaging impact of online theft,” said Mitch Glazier, Executive Vice President of Public Policy and Industry Relations for RIAA, in a press release last month regarding Sen. Klobuchar’s bill.

U.S. Attorneys General – to whom the bill would grant the expanded authority to send convicted infringers to jail for up to five years, to fines, or both – voiced high praise of the tougher criminal penalties against infringers and counterfeiters they estimate have cost the global economy $650 billion each year, in addition to stolen 2.5 million jobs from the G20 economies.

In a letter to Congress from National Association of Attorneys General, both conservative and progressive state attorneys general agreed, “This narrowly tailored response to clearly illegal activity would enable effective action against the worst of the worst counterfeiters and pirates online.”

Critics, however, are not so confident the language of the bill is narrowly defined. Groups like DemandProgress.org, a progressive policy group, have launched venomous attacks against the bill, calling on the group’s supporters to oppose the bill.

“Here they go again: Big business’ lobbyists are launching another attack on Internet freedom,” Demand Progress said on its website.

“Senators are considering a ‘Ten Strikes’ bill to make it a felony to stream copyrighted content – like music in the background of a YouTube video – more than ten times.”

In a response to BroadbandBreakfast.com inquiries, Linden Zakula, Klobuchar spokesman, was confident in the bill’s language.

“The bill language specifically targets people who willfully engage in copyright infringement for commercial advantage or private financial gain. The bill does not criminalize uploading videos to YouTube or streaming videos at home,” said Zakula.

Liz Kennedy, RIAA spokeswoman, echoed similar thoughts.

“YouTube is licensed by the major music companies so it will have no effect on YouTube or our relationship. The streaming bill is a criminal law bill requiring willfulness and excessive damage – and the Attorney General would have to decide if a case merits prosecution, not a copyright owner.”

Despite continued reassurance from lawmakers and industry professionals that the bill only targets the worst of the worst, legal experts say that it’s not that simple.

Mike Carroll, Professor of Law and Director of Program on Information Justice and Intellectual Property at American University’s, Washington College of Law, said that while there is a monetary threshold that must be breached– exceeding $2,500 the total retail value of the performances, and exceeding $5,000 to total fair market value of licenses to offer performances of those works – calculating value of the streams is not clear.

Carroll also said that the bill is problematic because it sweeps too broadly and is not limited to infringing commercial streaming services.

“The fact that the infringement has to be deemed willful before it can be criminal is not a real safeguard because the evidence to prove willfulness can be a wide range of conduct open to varying interpretations.”