AnthonyB alerted me to a bill that has just been introduced in congress that would change copyright law, in a manner that--depending on how certain terms are interpreted--could have implications for those of us who post recordings up on YouTube.

The important part of the proposed legislation is the section stating that 10 electronic public performances in 180 days constitutes a violation if it adds up to $2500 worth of total retail value somehow.

Whether this would affect us humble YouTubers much depends on how they're defining "retail value." Could a cover of me or Anthony playing an Einaudi piece be deemed to be worth, say, the 99 cents that iTunes would charge for a track? And if more than 2500 people watch it in 180 days (okay, maybe not likely for one of MY videos, but Anthony's garners that many views! ), that would seem to make it fall under the provisions of the new wording of the law.

I'm not sure that this law would change business as usual even if it were passed, as posting any recording of a piece that's not in the public domain is currently a violation of copyright law. And I'm thinking the primary targets of this legislation are those folks who take intact albums and upload them, track by track, as soon as they're released, not us Adult Beginners uploading our tortured renditions of pieces. I hope.

But I agreed with Anthony that it would be useful for people to know that this is on the radar.

For the truly curious, here's the text of the bill:

S 978 RS

Calendar No. 77

112th CONGRESS

1st Session

S. 978

To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

IN THE SENATE OF THE UNITED STATES

May 12, 2011

Ms. KLOBUCHAR (for herself, Mr. CORNYN, and Mr. COONS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

June 20 (legislative day, June 16), 2011

Reported by Mr. LEAHY, without amendment

A BILL

To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. CRIMINAL INFRINGEMENT OF A COPYRIGHT.

(a) Amendments to Section 2319 of Title 18- Section 2319 of title 18, United States Code, is amended–

(1) in subsection (b)–

(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B) by inserting after paragraph (1) the following:

‘(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;’; and

(2) in subsection (f), by striking paragraph (2) and inserting the following:

‘(2) the terms ‘reproduction’, ‘distribution’, and ‘public performance’ refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;’.

(b) Amendment to Section 506 of Title 17- Section 506(a) of title 17, United States Code, is amended–

(1) in paragraph (1)(C), by inserting ‘or public performance’ after ‘distribution’ the first place it appears; and

(2) in paragraph (3)–

(A) in subparagraph (A), by inserting ‘or public performance’ after ‘unauthorized distribution’; and

(B) in subparagraph (B), by inserting ‘or public performance’ after ‘distribution’.

Calendar No. 77

112th CONGRESS

1st Session

S. 978

A BILL

To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.

June 20 (legislative day, June 16), 2011

Reported without amendment.

ANother forum I am in has a pretty fiery discussion of this. Thing is, this thing would never go through and if it would, companies and normal people would take this to the supreme court very quickly.

Because I think companies(lets say game publishers) get increased profits because people show off their games on youtube. There are also people who have big or small businesses that totally rely on streaming things online.

As I understand it, this legislation only clarifies the penalties. The activities described in the OP are, I think, already unlawful in the USA (they are in the UK).

Monica, if you put recordings you have done of other peoples music on youtube, BUt make them private so only folk with the link can see them, then they are not public recordings, they are private recordings.

No law in the land can stop people from playing from sheet music they have bought, in their own house, so you have a few friends round for dinner, are you allowed to play your own piano in front of them? I think so.

If someone took a video of you doing that and put it on youtube, thats not your fault....
Theres always a way round stupid legislation.

It would be revealing to know who the lobbyists for this bill represented.

Oh, let me take a wild guess.

The greedy, corporate gits for whom a mountain of money is never quite enough and any opportunity to squeeze the ordinary tax payer just a little bit more, is a positive delight. We have the same sort of sub-species here in the UK too.

As for which specific greedy, corporate gits, yea, I'd like to know that myself.

You are wrong about this but never mind ... this legislation isn't aimed at folks like us. You Tube will still take down videos if the copyright owner makes a claim and won't if they don't. That is more likely than anyone playing some Einaudi.

Anyone who doubts my statement about "wrong about this" should look up the case against the Girl Scouts being suited for copyright on camp fire songs ... public pressure did cause a backfire against the copyright holders on this, just as prosecuting people's performances of Einaudi would do. But that is different from the legality of it.

I think you're probably right, but (in the UK and the USA) the legal definition of 'public performance' is so lamentably unclear that it's difficult to be sure.

The Girl Scouts case is slightly different, because it's harder to consider the situation as 'domestic'. Even then, I can't imagine that a US court would have considered a small group of Scouts singing 'Puff the Magic Dragon' in the middle of a remote wood as a public performance -- the problem in that case was that it was more productive for the Scouts to fight the issue in the newspapers than calmly in the courts.

One thing is clear, however -- at least in the UK. Unless your perfomance is genuinely domestic, the fact that it is by invitation only does _not_ put it outide the scope of 'public'. This is the essence of Jennings v. Stephens, which is still cited in just about every copyright case.