The Cornell Law School Federalist Society

S. 978, “Let’s Play”, and copyright law

July 3rd, 2011 by Kirk Sigmon

S. 978, a bill to amend the criminal penalty provision for criminal infringement of copyright, proposes quite possibly the most asinine and over-broad criminal statute I have seen in a long time.

To properly understand S. 978, some backstory must be provided. As the cable television industry dies off and many users become more selective in what they choose to watch, many websites now host streams of video content for niche viewers. For example, many websites stream video of people playing video games, usually in some competitive context (this is particularly the case for Starcraft 2 gaming leagues). Many users of YouTube also record themselves playing videogames (typically also with commentary) and upload the resulting video online for others to view, a trend known as “Let’s Play” videos. Similar streaming and video distribution mechanisms have been used outside of the video gaming context — many websites now host streams of foreign sports matches, news networks, and the like — but by far video games are the most dominant topic.

S. 978 attempts to criminalize this behavior. The proposed amendment provides, in part:

(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;’;

In translation, if you publicly perform by electronic means the same work 10 or more times in an 180-day period, and if the copyright holder can prove their damages exceed a certain amount, you can be thrown in jail for up to 5 years.

It should go without saying that, given the context outlined above, this statute is incredibly asinine and over-broad.

The reasons justifying the usual prohibition on public performance of copyrighted material need not be discussed here in length. Public performances can be somewhat dangerous to copyright holders because they run the risk of diluting a monopoly over a creation, a dilution which can ruin the marketability of a copyrighted work. In simpler terms, if Joe owns a movie copyright and Bob buys the right to watch it by DVD and plays the DVD at a movie theater for everyone to see for free, Joe’s copyright becomes nearly useless, because no-one would buy from him what they can see for free. Public performance rights, an animal separate from individual ownership rights, allow Joe to both profit from Bob’s performance and allow Joe to restrict Bob’s usage of his copyright so as to not dilute it beyond repair. Because public performance rights operate in the market more or less like any other good, the price will naturally adjust itself to something generally favorable to both buyers and sellers.

S.978 is emblematic of what happens when the once finely-tuned balance between public intellectual interests and private copyright interests skews too far in the direction of copyright interests.
The problem with S. 978 is that it does not focus the differences in what is performed and how it is performed, and this lack of nuance is fatal to the proposed amendment.

First off, S. 978 fails to identify the nature of the broadcasted work, which means that it is fatally over-broad. S.978 appears to apply to all copyrighted works, insofar as Title 18 Section 2319 applies to them. This means that the most incidental copyrighted work, when “publicly performed” in some manner for the requisite period and the requisite amount of times, could get the offender thrown in jail. It seems ludicrous that, for example, a photographer would need the protections of the criminal law if a photo he took, framed on the wall, was visible in 10 videos posted on YouTube by some random “vlogger.” It would also seem ludicrous that video game companies would be threatened by recorded videos of their games being played, as many games are much more about the gaming experience (i.e. the interactivity) more than they are their (usually lacking) visual, aural, or story elements. While S. 978 seems somewhat logical insofar as it applies to movies, which are distributed in their entirety when streamed or recorded online, certain copyrighted works simply do not need the protections of such a draconian statute.

Second off, S. 978 fails to identify how the copyrighted work is performed. While numerous court decisions have helped outline what “public performance” is in terms of existing copyright law, this amendment may wholly change that. Is the presence of a copyrighted photo on a wall in a video sufficient? May a video game player avail himself to the fact that his “public performance” is only partial (i.e. the video/audio elements of the game, not the interactive ones) and thus not a full public performance of the entire copyrighted work? What happens if a user divides the work into pieces and broadcasts them separately? Does the 10-performance limit somehow influence such a calculus?

Many of these issues could hypothetically be solved by reference to case precedent, but such precedent does not answer what may be the most important question: why is this law necessary? What kind of harm has arisen that justifies such a broad, nebulous statute that criminalizes — with threat of jail, no less — the mere performance of copyrighted work such as videogames? Are public performance rights on their way out? Does the criminal law really need to concern itself with 12 year olds uploading videos of themselves playing Nintendo games to YouTube?

S.978 is emblematic of what happens when the once finely-tuned balance between public intellectual interests and private copyright interests skews too far in the direction of copyright interests. The pubic will not benefit from the draconian ambit of S. 978 — the only groups profiting off of such a statute will be select copyright owners, who will not only be able to protect their copyright from uses that do not harm their rights at all, but who will also be able to do so for free by using the criminal law rather than by civil litigation to punish those who cause them alleged harm. In essence, S. 978 wields the sword of the criminal justice system to protect a small class of copyright holders from virtually nonexistent harms that they were already protected by in the civil context.

QUICK ADDENDUM (as of July 7)

Full disclosure: as a comment by “Barry” (below) notes, there are ways in which S. 978 can be argued to not apply to “Let’s Play” broadcasts — namely, that there is a requirement that the poster act intending financial gain (which generally mirrors the above-mentioned damages requirement). Barry correctly notes that it could be argued that “fun” postings of videos don’t meet this intent requirement, and that S. 978 thus isn’t as draconian as it appears. This argument is logical. It should be noted, however, that courts may interpret various incentives that websites like YouTube provides (like special accounts) to be tantamount to a form of profit (especially since some accounts involve paychecks). It could also be argued that the intent requirement only requires that some party benefits (i.e. Joe posts so that YouTube profits from ad revenue), and thus S. 978 could be extended to posters of content that help YouTube profit. Both of these arguments are pretty poor. In any event, Barry’s comment is worth attention.

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5 Responses to “S. 978, “Let’s Play”, and copyright law”

  1. Barry says:

    You fail to mention that this bill only pertains to copyright infringement by “public performance” for “commercial advantage or private financial gain”, and one can easily argue that uploading for “fun” provides neither commercial advantage nor financial gain. It is also worth noting, for the intentionally ignorant, that 18 USC § 2319, Criminal infringement of a copyright, already makes the electronic reproduction or distribution of copyrighted works “for profit” a felony, provided they meet the necessary threshold.

  2. NotALawyer says:

    This decision saddens me.

    Why is it now considered a crime to use MY free speech and MY human rights to comment on a video game as I play through it?

    I make no money from this, but the owners of the copyright don’t lose money, either. Actually, they get free publicity for the game, especially in the case of older games. How many people have played the video game Myst in the last few years? How many more people could be “turned on” to this game through a well-done video long-commentary of the game? How much money would the copyright owners and businesses in charge make from more people wanting these games?

    The next thing you know, they will ban the placement of old TV show intros or old company logos online simply because it violates their copyright.

    This is unconstitutional in my opinion. You have every right to your copyrights, big business. But NOT when you are using them to oppress creativity, fair use, and free speech.

  3. Chayne says:

    I honestly think that this law should not be passed, i think that if kids and even adults should be able to upload “lets plays” if they want, i enjoy watching “lets plays” im currently watching 4 or 5 at the moment and i don’t want it to abruptly end. I think all americans and all other ethnicities should be able to upload and post walkthroughs and “lets plays” if people are willing to watch them, i also think people should be able to upload videos of old tv shows on youtube and other streaming sites, im 13 and i know about gummi bears, the game master , and many other tv shows from around the time those were created. I do agree about the part of the law with streaming movies that are recently coming out. Thanks for reading this if you have.

  4. [...] property holders. The best example of this dynamic comes from the prohibition on streaming, which I have written about before in the context of a predecessor bill. Where IP-holding parties can use the Attorney General to prosecute those making innocent [...]

  5. Chris says:

    As I see it Computer games are a tool for creating original content – and as such original content created by the user (such as in let’s play video’s) IS original content created by the user… and is theirs to do with as they please – including the monetizing of content.
    Calling an etcher sketch a toy in no way effects that it can legitimately be used as a tool to create original content – and I do not see why video games would be any different.
    In game music may be more of a legal issue however.

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