The following letter of response was written by David “UltraDavid” Graham for Shoryuken.com. In it, David addresses some of the responses to and criticisms of his “Tolling the Stream” article.

I’m really happy to see such a strong response to my article “Tolling the Stream” about Senate bill 978. If we’re going to do anything about the bill, we have to create as much public awareness of it as possible. Thanks for spreading the word!

As often happens in the law, though, some people have disagreed with or had questions about my interpretation of the law. That’s awesome, it means people are paying enough attention to this legislation that they’re engaging with the text itself.

So one of the biggest critiques of my interpretation, sent to me by Keith Winstein via email and also posted by ExplodingCabbage (no idea if it’s the same person) on Shoryuken.com and SpeedDemosArchive.com, is that this bill only applies to works that have not yet been released. WinCabbage (yeah that’s right) understands the bill to mean that if a work like a video game is already released and on the market, S.978 won’t apply to it. This got reposted on Reddit, check it out if you want.

Let’s go to the text of this bill (heads up, this might get dry heh): ding. It amends two existing sections of law, Section 2319 of Title 18 and Section 506 of Title 17. And you can see that reflected in the way the bill is laid out; under the bolded Section 1 you have (a), Amendments to Section 2319, and then several lines down under the same horizontal column you have (b), Amendments to Section 506. And they do different things.

WinCabbage’s critique refers to the changes in (b) for Section 506. He points out that this part of the bill just inserts the words “public performance” in 506(a)(1)(c) and again in 506(a)(3)(A) and 506(a)(3)(B). To understand what that means is almost like defining variables in a math problem, so let me put it together real fast:

“Any person who willfully infringes a copyright shall be punished… if the infringement was committed… by the distribution or public performance of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.”

If a movie, TV show, video game, song, and cetera hasn’t actually been released yet, and you know or should know that it’s unreleased but you stream or upload it anyway, you’re in trouble.

There’s nothing wrong with WinCabbage’s interpretation of the changes by S.978(b) to Section 506 at all, he’s totally right. This bill would make it illegal to perform unreleased copyrighted works. It’s just that he missed the entirety of S.978(a).

Section 2319 incorporates a different part of Section 506 not changed by the above, so to figure out what the full law will say here you have to insert variables into variables. After you do that, 2319 reads, in relevant part:

“Any person who commits an offense [for purposes of commercial advantage or private financial gain]… shall be imprisoned not more than 5 years… if the offense consists of 10 or more public performances by electronic means, during any 180 day period, of 1 or more copyrighted works; and the total 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 the total fair market value of licenses to offer performances of those works would exceed $5,000.”

This is the part I was talking about in my original article, and I think my analysis of it still stands. And there’s not a word in this section limiting it only to unreleased anything.

While WinCabbage is right that S.978 would apply to unreleased works, it would very much also apply to works that have already been released. And really, when you think about it, his analysis doesn’t pass the smell test. Does it seem likely that the entertainment industry would lobby for and the government would consider passing a bill that only makes streaming unreleased material illegal? I mean what, they wanna jail you if you stream an advanced copy of the new Harry Potter movie before it comes out, but once it’s out, they say stream away and don’t worry about it? That doesn’t seem very plausible.

Another critique I’ve gotten is that I was wrong when I said that public performances have never been criminally illegal before. On my website Will Stout says, “You mention that copyright infringement has only ever been handled by civil law and that you can’t be sent to jail, but Section 2319 of Title 18 says that copyright infringement is punishable by jail time.”

This is a little simpler to debunk, since that’s not actually what I was saying. I said, “There’s never ever been a criminal penalty for an unlicensed performance of a copyrighted work.” Yes, infringement against other exclusive rights granted by copyright has been criminalized and punishable by jail for a long time, but the public performance right itself has not. So some people already go to jail for copying or distributing copyrighted works, but nobody’s ever gone to jail for just performing it. That’s the big new thing in Senate bill 978.

And now, a common question. I don’t make $2500 per half year streaming or uploading things, so am I safe from this bill? Answer: not necessarily. Remember the other clauses that detail other ways you can be implicated here: “The total economic value of such public performances to the infringer or to the copyright owner would exceed $2,500,” and “The total fair market value of licenses to offer performances of those works would exceed $5,000.”

So if the copyright owner feels like your 10 or more streams or uploaded videos over the course of 180 days are worth more than $2,500, you’re boned. And it’s hard to know how much the fair market value of a license to stream tournament footage is because that kind of license is so very rarely granted by most companies, but it has a huge range. I know one video game company that sometimes licenses the public performance right for free, but I know another that has asked for orders of magnitude more than $5k. The copyright holder has a strong input on the boundaries of what is illegal here. If it’s able to ask a fair market price for a performance license of more than $5,000, then you’re breaking the law.

Another common question: what if I’m streaming for free and not trying to make any money, am I safe then? That depends. The bill would be built into a law that already applies only when an offense is committed “for purposes of commercial advantage or private financial gain.” But what does that phrase mean?

Obviously people who are trying to make a business are implicated. People who are trying to support their hobby or charity etc by making money are also implicated, since the law doesn’t require profit, only that the purpose of the performance include financial gain of any kind. Even people who don’t necessarily intend to make money might be uploading, streaming, or embedding on a site that has advertisements, and the very presence of those ads could imply that the purpose of the performances is financial.

So here’s a scenario. You’re uploading replays to YouTube and then embedding them on your personal website, which has some small set of ads to help you recoup your expenses without making a profit. Over the course of 180 days you make at least 10 videos, and you make way less than $2,500 on your ads. But the copyright holder for the game you’re using would have been able to charge $5,001 for a license to legally upload the copyrighted audiovisual work in their game. Are you breaking the law? You bet.

I also just want to mention again that I’m not trying to be too alarmist here. I want to strike some kind of note between building a reasonable amount of appropriately directed opposition and causing a panic. I do not, repeat, do not think it’s likely that the government would spend much time pursuing game streams and videos that the copyright holders themselves tend to ignore. What this bill is really after are things like streaming live pay per view or uploading films to thousands of viewers.

The major issue for more reasonable people who want to stream or upload other kinds of copyrighted works is the uncertainty. Are you willing to risk jail time on the off chance that your Ocarina of Time walkthroughs draw the ire of the federal government? I mean, I’d definitely think twice. And as for more popular streamers, casters, and uploaders, are you still willing to try to make a business out of this or support your hobby? Would any sponsors be willing to back a streaming organization that at any time could (probably not, but could) get shut down for illegality? I think this bill could lead to a massive chilling effect at both the smaller individual levels and the larger more popular levels. Again, I would hate to see that happen.

Of course, this all goes away if the video game copyright holders grant us licenses, especially some kind of a blanket license or easily accessible and obtainable individual licenses. That would be rad, and maybe it would happen, it’s just never happened before.

Just after I finished writing this, I saw that Capcom corporate officer and senior vice president Christian Svensson responded to my initial article (which is awesome) with some good news. He says in part, “If this legislation comes to pass I’m sure we’ll figure out ways to support folks whose efforts and intentions have historically been helpful. Our community team will likely take center stage in facilitating those activities.” That’s great! He also agrees with me that he “[doesn’t] believe the government is likely to take proactive action on criminal merits without the prompting of an IP holder.”

But he also notes that there have been times when Capcom’s interests have been hurt by streams and uploaders and that there may be some cases in which legal action is a possibility. And keep in mind that this is just one of dozens of video game copyright holders whose rights we regularly infringe. Who’s to say whether they’ll all be as good about working with the community as Capcom? Once again, it’s the uncertainty and the very steep penalties associated with it that make me most uneasy.

Anyway, thanks for paying attention. If nothing else, I’m happy to have helped gotten a conversation going about this bill. Please let me know if you have any more questions or comments! Believe me, I’ll ramble on about this as long as you’ll let me.

[images via Protocol Snow