New Bill in Congress Could Turn Alternative Media Outlets and YouTube Singers Into Felons

SB 978 is just one more bullet in a broader government effort to end the web as we know it.

In June, Senator Amy Klobuchar, D-Minn., introduced SB 978, specifically “to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.”

In lay terms, it’s the “illegal streaming bill,” and it would essentially make the streaming of any copyrighted material on the Internet a felony punishable by up to five years in prison. On paper, it sounds innocuous—copyrighted material and the Internet have a contentious history, and efforts to curb piracy have conflicted with the concept of the Internet as a free exchange for information. But SB 978 is a sweeping curtailing of Internet rights under the guise of hindering piracy, and just one more bullet in a broader government effort to end the web as we know it, and snip away at the First Amendment.

Worse is the potential of SB 978 to prosecute those individuals uploading YouTube videos. This will not simply target those people uploading full movies there or to other video streaming sites. It could also be used to curb individual musicians who upload their cover versions of copyrighted songs, a tradition that practically made YouTube what it is today. The nonprofit Fight for the Future is particularly concerned with this aspect, and has launched a campaign called “Free Bieber,” using the example of Justin Bieber’s rise to fame as a way to get out the message. (Ironically, Bieber’s camp has issued a cease-and-desist over using his name in the campaign.)

The implications are far broader than a Bieber, though. When Rufus Wainwright and Sean Lennon covered Madonna’s “Material Girl” at Occupy Wall Street, if someone had uploaded a video of the performance to YouTube, Madonna (or whomever owns her music) could sue the uploader if it’s deemed a “public performance.” Reports the Internet advocacy group Electronic Frontier Foundation (EFF):

In general, a “public performance” of a work under the Copyright Act occurs when a work is performed before a substantial gathering of people (for example, a concert) or when the work is transmitted in a way that it can be accessed by members of the public, even if individuals receive the performance in different places or at different times (for example, a TV broadcast).

As an initial matter, it’s hard to narrow the kinds of activities such a bill could potentially encompass. Practically speaking we wouldn’t expect to see most of these pursued or prevailing; however, uncertainty and the fear of prosecution and defense expenses could well discourage innovation in online services and lawful speech.

Enactment of this law could affect the millions of unknown, non-professional musicians who film themselves singing, say, John Lennon or Rihanna songs from their bedrooms. It’s hard to imagine the music industry attacking average citizens—right? But who can forget the RIAA’s lawsuits against individuals who downloaded music as a way to make an example of their piracy stance—including, in 2003, a 12-year-old girl living in New York public housing?

But that’s not where it ends: one troubling aspect of SB 978 is that its vague language enables it to forge a path to criminalize even linking to copyrighted information “like corporate media news sources, and shut down the alternative media”—like AlterNet:

Copyrighted works protected here include audio-only works (musical works and sound recordings), audiovisual works (motion pictures, television programs, etc.), and computer programs. So if the bill is enacted, anyone engaged in webcasting without a license would appear to be subject to criminal penalties. While we still believe the focus is firmly on the illegal streaming of audiovisual content (like movies, live sporting events, other television programs), it is clear that the law could be used against anyone who is webcasting without the required licenses. One more reason to come into compliance with the statutory license applicable to webcasting.

The bill has serious bipartisan support—Klobuchar introduced SB 978 along with John Cornyn, R-Tex. and Christopher Coons, D-Del., all members of the Senate Judiciary Committee. They were acting on a desire of Obama’s “IP czar” to attach bigger punishments to Internet-related crimes, believing that law enforcement will be more willing to prosecute with higher stakes. But it’s also another step toward curtailing First Amendment rights, as Congress navigates the tricky line between freedom of speech and the web…usually coming out on the side of corporations.

Meanwhile, Fight for the Future has toned down its previously Bieber-heavy Web site, while making it clear that music isn’t its only concern. For instance, it uses the example of libraries as a comparable resource to the Internet archives that both companies and individuals have spent decades building, asking the pressing question, “After spending thousands of years building libraries of donated books, why do governments try to tear them down when they happen spontaneously online?”

As America’s cash-poor libraries, cornerstones of our democracy, struggle to stay afloat, the open-source aspect of the Internet allows those who have enough funds to purchase every bit of information they ingest to learn at the same rate as those who do—and to be competitive in both school and in their jobs. So as “Internet regulation” looks more like wholesale capitalism—and another way to fracture our country, already smarting from inequity—it becomes more important to uphold the First Amendment in all aspects of our culture…whether on Wall Street or online.