So America has an overcrowded prison system and violent felons are accidentally being released… so what’s the U.S. Senate doing? They are going to overburden the prison system more by sending people to prison as felons because of online videos.
According to the bill as it’s currently written, if you engage in “public performances by electronic means” 10 or more times over a 180 day period, and if either the total economic value of those performances exceeds $2500 or the cost of getting the copyright holder’s permission to perform exceeds $5000, then you can potentially get fined and put in jail for 5 years. Jail. FIVE YEARS.
Just to hit you over the head with this, that means that if you stream a game like Street Fighter 4 or Starcraft 2 (or a movie or a song etc) only 10 or more times in a full half year, and if you make a bit of money doing it, you either need to have a license from Capcom or Blizzard etc or you risk going to jail.
Amusingly slash horrifyingly enough, it gets worse. The wording of this bill is so vague that “performance” could count for a crap-ton of what we who understand the internet would consider very different things. The offense is defined super broadly: “public performance by electronic means.” That includes live streaming of copyrighted audiovisual works, of course, but it almost certainly also includes recorded YouTube videos of copyrighted audiovisual works, whether they be match vids, game footage/live shot hybrids, movies, TV shows, music, and so on. Going off other legal precedent, it might even cover embedding an infringing YouTube vid and videos of kids lip syncing to music.
In essence, a bill intended to limit the unauthorized live streaming of films and TV could result in potential jail time for a lot of people doing very different things. While the bill’s sponsors might not have known how wide-ranging its effect could be at first, they’ve been confronted with that since the text was released and they show no signs of pulling it back.
What about the monetary limits? Well, they actually aren’t that high. If you don’t think our major streamers, casters, and uploaders make $2500 over a full half a year, you’re crazy. Keep in mind, the wording of the bill is “the total economic value of such public performances to the infringer or to the copyright owner.” Total, meaning revenue from live streaming, plus revenue for replays, plus compensation by a tournament for coming to stream in the first place, and so on. And economic value, as in not net profit but just the amount of revenue coming in.
Because almost every use of an audiovisual work online can be considered a public performance, this might drastically change how people behave online. No longer is the penalty for uploading infringing videos just getting shut down or having to pay the copyright owner. If the vids become popular, you might go to jail.
Now, obviously some companies, including video game publishers like Capcom and Blizzard, tend to take a hands-off approach to the constant unauthorized streams and replays our scenes pump out. So why worry? Surely they wouldn’t send us to jail.
But that’s only in a world where the performance right is merely a civil law provision, where the only ones who can bust infringers are copyright owners. Jamming the performance right into criminal law means that the government gets involved and gets to decide whether to bring charges on its own. Whereas for now video game publishers can (and usually do) let infringing live streams and replays slide, in the future the government might be able to bring criminal charges regardless of whether the copyright holder says to. In practice the government tends not to go after infringers unless notified by copyright holders, but if it wants to it can go after infringers anyway.
I don’t want to be too alarmist here. It strikes me as very unlikely that the government would take the time and money to put someone in jail for streaming a Marvel vs Capcom 3 tournament. But since this would be a totally new thing, I can’t say for sure; I don’t think anyone can. I also don’t think it’s a great idea to ever play Russian roulette, regardless of whether the gun has a hundred chambers or ten thousand.
I think the consequences for our relationship with video game copyright holders are obvious. It would no longer be good enough that Capcom takes a hands off approach to us publicly performing their copyrighted works, because the government could still bust us if it wants. I can’t imagine that many people would risk jail time by engaging in publicly viewable, easily findable unauthorized performances like tournament streams or popular YouTube vids. The result might be that the only people streaming or putting up replays are those who have licenses from copyright holders explicitly allowing them to do so.
And I think that would be a disaster for our culture. It means the gut gets slit right out of our media side, because while having a few big names and groups is great, without voluntary participation by whoever wants to be involved I feel like we’ll lose a huge portion of the vibrant, fast-moving dynamism that I love about our scenes. Maybe we’ll be able to get permission easily, but in my personal experience it’s been anything but easy for video game copyright owners to grant licenses.