Posted by patrickklepek (3398 posts) -
Based on what the Interent's been saying about S.978, this is an accurate representation of this bill's passage. I'm joking. A little bit.

There have been some apocalyptic responses to S.978, a bill currently working its way through the U.S. Senate. The bill would make the online streaming of copyrighted content a felony.

The current version of the law only impacts peer-to-peer transfers and web downloads, with this wrinkle adding "online streaming" to the mix.

The response from gamers has been akin to the sky is falling.

Nothing in the law mentions video games. This bill is primarily intended to target music and movies, with organizations like the Motion Picture Association of America and Recording Industry Association of America giving the bill a thumbs up as it lumbers forward.

Just because there's no mention of games, however, doesn't mean games aren't (or couldn't be) affected, but to what extent? The heated rhetoric has lead to proclamations as grand the end of Giant Bomb (which isn't happening), prompting me to investigate the issue.

"The legislation is worded far too broadly and can easily apply to video games as a result," said Hal Halpin, president of the Entertainment Consumers Association, fresh off the Supreme Court victory. "Part of the problem that we have in educating the public, and gamers in particular, is that they don’t see games called out specifically and therefore feel that they’re excluded. In fact, it’s the opposite--because there is no explicit exclusion for video games in the bill, they are included."

The Entertainment Software Association, representing the industry's publishers, did not return a request for comment.

The bill is sponsored by Minnesota Democratic Senator Amy Klobuchar and co-sponsored by Delaware Democratic Senator Chris Coons and Texas Republican Senator John Cornyn.

One worry is the effect on stream-heavy events like EVO. As EVO is sanctioned by Capcom, there's not much to be concerned about.

At a Senate Judiciary Committee meeting about the bill on June 9 (you can watch the entire hearing over here), Klobuchar said the bill wasn't targeting ordinary individuals but egregious offenders. Her analogy involved a street peddler selling pirated CDs and DVDs. If their inventory's worth more than $2500, it's a felony. Someone doing the same thing through streaming is limited to a misdemeanor.

"The bill is not intended nor does it allow law enforcement to prosecute people who may stream videos and other copyrighted works to their friends without intending to profit from the work of the copyright owner," she said. "It also does not allow prosecutors to go after individuals that innocently post links on their blogs to copyrighted protected works."

"For this bill to affect someone, the person would have to be already committing a crime under current law," she continued. "This bill just makes the worst of those crimes and makes them a felony."

Klobuchar appears to be targeting individuals solely profiting off streaming content they didn't create. The key word is "profit," as Klobuchar claims some illegal streaming websites are already make $40 million per year without producing a thing.

Have you ever watched a stream of an NFL game through a decidedly shady looking website? She's talking about places like that. The scope of the bill, however, means it could be applied elsewhere.

"Is the passage of S.978 a catastrophe waiting to happen?" posed Andrew Ehmke, an attorney at Texas-based Haynes and Boone, LLP. "Catastophe is probably too strong of a word, but a lot of the commentary and concern about the scope and breadth of the law is legitimate."

Uncertainty strikes at the heart of this. It's why you see videos like the one embedded below showing up, where the consequences of this bill coming into law have suddenly become taking down half of YouTubes's video game content and largely diminishing the coverage coming out of events like E3.

Game videos are enormously popular on YouTube and other video services. Live streaming new games on launch day are incredibly common. Ehmke doesn't foresee those people having any problems.

"For it to be criminal copyright," he explained, "one of the elements is 'for purposes of commercial advantage or private financial gain.' I would hope that the FBI would not view a random YouTube user as somehow falling within the definition of 'for purposes of ... private financial gain.' However, if someone posts to YouTube with a link back to a web site, which contains banner ads that pay-per-view, that seems to move closer to 'for purposes of ... private financial gain.'"

It's hard to see anything happening on the scale of what the video suggests, but as a result of the vague wording, people speculate, with advocates like Halpin fueling the fire, suggesting that people aren't blowing this out of proportion.

"We’ve taken grief from naysayers as well," he said. "As consumer advocates, our job is not to worry about the best case scenarios, but rather the worst case ones. We ran the bill past internal and external legal experts and all agree that it’s very dangerous as presently crafted."

Some counterarguments fall back on "fair use," which allows appropriation of copyrighted content. In order to qualify for "fair use," the person must first prove the content's being used for "criticism, comment, news reporting, teaching, scholarship, or research." Proving that will be difficult for some.

S.978 is largely intended to combat websites streaming content like NFL games.

"If the law passes, the real issue will be whether the FBI chooses to enforce the law in a given scenario, and in what manner," explained Ehmke. "While possible under the wording of the law, it seems unlikely that the FBI has the time, effort, or inclination to start arresting every poster to YouTube who gets 10 hits on his achievement guide video. That being said, the lack of willingness by the FBI to enforce probably does not give comfort to those who do not want the law passed at all."

If.

Right now, hearings on the law are over. Congress is scheduled for a month-long recess in August, unless a deal on the debt limit isn't reached and the session is extended. S.978 will either come up in the next two weeks or get pushed back until when Congress resumes in September.

Halpin said he's been in contact with the three legislators involved with the bill, but would not disclose the nature of the conversations.

"I can say that conversations are ongoing, for now," he said. "If and when things progress beyond that point, we’ll certainly keep [everyone] in the loop."

You can keep tabs on the bill through govtrack.us, a tool for monitoring bills as they slowly but surely move through our legislative bodies. Tools to contact each legislator are available on congress.org.

Staff
#1 Posted by patrickklepek (3398 posts) -
Based on what the Interent's been saying about S.978, this is an accurate representation of this bill's passage. I'm joking. A little bit.

There have been some apocalyptic responses to S.978, a bill currently working its way through the U.S. Senate. The bill would make the online streaming of copyrighted content a felony.

The current version of the law only impacts peer-to-peer transfers and web downloads, with this wrinkle adding "online streaming" to the mix.

The response from gamers has been akin to the sky is falling.

Nothing in the law mentions video games. This bill is primarily intended to target music and movies, with organizations like the Motion Picture Association of America and Recording Industry Association of America giving the bill a thumbs up as it lumbers forward.

Just because there's no mention of games, however, doesn't mean games aren't (or couldn't be) affected, but to what extent? The heated rhetoric has lead to proclamations as grand the end of Giant Bomb (which isn't happening), prompting me to investigate the issue.

"The legislation is worded far too broadly and can easily apply to video games as a result," said Hal Halpin, president of the Entertainment Consumers Association, fresh off the Supreme Court victory. "Part of the problem that we have in educating the public, and gamers in particular, is that they don’t see games called out specifically and therefore feel that they’re excluded. In fact, it’s the opposite--because there is no explicit exclusion for video games in the bill, they are included."

The Entertainment Software Association, representing the industry's publishers, did not return a request for comment.

The bill is sponsored by Minnesota Democratic Senator Amy Klobuchar and co-sponsored by Delaware Democratic Senator Chris Coons and Texas Republican Senator John Cornyn.

One worry is the effect on stream-heavy events like EVO. As EVO is sanctioned by Capcom, there's not much to be concerned about.

At a Senate Judiciary Committee meeting about the bill on June 9 (you can watch the entire hearing over here), Klobuchar said the bill wasn't targeting ordinary individuals but egregious offenders. Her analogy involved a street peddler selling pirated CDs and DVDs. If their inventory's worth more than $2500, it's a felony. Someone doing the same thing through streaming is limited to a misdemeanor.

"The bill is not intended nor does it allow law enforcement to prosecute people who may stream videos and other copyrighted works to their friends without intending to profit from the work of the copyright owner," she said. "It also does not allow prosecutors to go after individuals that innocently post links on their blogs to copyrighted protected works."

"For this bill to affect someone, the person would have to be already committing a crime under current law," she continued. "This bill just makes the worst of those crimes and makes them a felony."

Klobuchar appears to be targeting individuals solely profiting off streaming content they didn't create. The key word is "profit," as Klobuchar claims some illegal streaming websites are already make $40 million per year without producing a thing.

Have you ever watched a stream of an NFL game through a decidedly shady looking website? She's talking about places like that. The scope of the bill, however, means it could be applied elsewhere.

"Is the passage of S.978 a catastrophe waiting to happen?" posed Andrew Ehmke, an attorney at Texas-based Haynes and Boone, LLP. "Catastophe is probably too strong of a word, but a lot of the commentary and concern about the scope and breadth of the law is legitimate."

Uncertainty strikes at the heart of this. It's why you see videos like the one embedded below showing up, where the consequences of this bill coming into law have suddenly become taking down half of YouTubes's video game content and largely diminishing the coverage coming out of events like E3.

Game videos are enormously popular on YouTube and other video services. Live streaming new games on launch day are incredibly common. Ehmke doesn't foresee those people having any problems.

"For it to be criminal copyright," he explained, "one of the elements is 'for purposes of commercial advantage or private financial gain.' I would hope that the FBI would not view a random YouTube user as somehow falling within the definition of 'for purposes of ... private financial gain.' However, if someone posts to YouTube with a link back to a web site, which contains banner ads that pay-per-view, that seems to move closer to 'for purposes of ... private financial gain.'"

It's hard to see anything happening on the scale of what the video suggests, but as a result of the vague wording, people speculate, with advocates like Halpin fueling the fire, suggesting that people aren't blowing this out of proportion.

"We’ve taken grief from naysayers as well," he said. "As consumer advocates, our job is not to worry about the best case scenarios, but rather the worst case ones. We ran the bill past internal and external legal experts and all agree that it’s very dangerous as presently crafted."

Some counterarguments fall back on "fair use," which allows appropriation of copyrighted content. In order to qualify for "fair use," the person must first prove the content's being used for "criticism, comment, news reporting, teaching, scholarship, or research." Proving that will be difficult for some.

S.978 is largely intended to combat websites streaming content like NFL games.

"If the law passes, the real issue will be whether the FBI chooses to enforce the law in a given scenario, and in what manner," explained Ehmke. "While possible under the wording of the law, it seems unlikely that the FBI has the time, effort, or inclination to start arresting every poster to YouTube who gets 10 hits on his achievement guide video. That being said, the lack of willingness by the FBI to enforce probably does not give comfort to those who do not want the law passed at all."

If.

Right now, hearings on the law are over. Congress is scheduled for a month-long recess in August, unless a deal on the debt limit isn't reached and the session is extended. S.978 will either come up in the next two weeks or get pushed back until when Congress resumes in September.

Halpin said he's been in contact with the three legislators involved with the bill, but would not disclose the nature of the conversations.

"I can say that conversations are ongoing, for now," he said. "If and when things progress beyond that point, we’ll certainly keep [everyone] in the loop."

You can keep tabs on the bill through govtrack.us, a tool for monitoring bills as they slowly but surely move through our legislative bodies. Tools to contact each legislator are available on congress.org.

Staff
#2 Posted by FritzDude (2251 posts) -

I hate Bill so much...

#3 Posted by GaspoweR (2754 posts) -

Well, that's a relief, Thanks Patrick!

#4 Posted by rcath (356 posts) -
@shenstra:  you gotta do what you gotta do.
#5 Posted by JJOR64 (18892 posts) -

A DSP video?  Oh my god...

#6 Posted by benjaebe (2783 posts) -

Oh Patrick, why did you have to link to DSP. Why oh why.

#7 Posted by ajamafalous (11813 posts) -

@Gliz9 said:

Seriously Shenstra? Thats what you post.....

Hey man, he got that quest.

#8 Posted by corewalker (35 posts) -

IMO this sounds a lot like Obama saying the federal gov. isn't going after grandmas with cancer using med pot, only to go after grandmas with cancer using med pot. 

#9 Posted by ilduce620 (28 posts) -

Great article, Patrick.  Good to see more investigative journalism coming out of Giant Bomb!

#10 Posted by lordofultima (6204 posts) -

@JJOR64 said:

A DSP video? Oh my god...

DSP IS ON A GIANT BOMB NEWS ARTICLE AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH

#11 Posted by Wiseblood (631 posts) -

Game companies don't really care about kids doing LPs of their games. Nobody's getting sued for it right now, so I doubt they'll start pursuing criminal charges if this bill passes. Hell, most companies don't even care enough to file copyright claims with Youtube.

#12 Posted by Sogeman (862 posts) -

Just don't watch that embedded video. That guy is an idiot.

#13 Posted by craigbo180 (1739 posts) -

Oh man DSP video in your article, has it really come to this.

#14 Posted by Jeffk38uk (715 posts) -

Certainly makes the whole bill scare a lot more understandable. I can see how it could still be a potential danger if it evolves beyond what it is currently laid out, but certainly not the end of video content people make it out to be.

#15 Posted by Gliz9 (78 posts) -

@ajamafalous: Yeah but writing a single word is almost as bad as the people that get the quest by writing "first"

#16 Posted by Dany (7887 posts) -

I never understood what the hoopla was about. This bill won't kill youtube uploaders, just movie and tv show streamers.

#17 Posted by buft (3300 posts) -

its shenanigans, all of it.

#18 Posted by JJOR64 (18892 posts) -
@lordofultima said:

@JJOR64 said:

A DSP video? Oh my god...

DSP IS ON A GIANT BOMB NEWS ARTICLE AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH

The video was informative though so I will cut him some slack this time.
#19 Posted by LordCmdrStryker (346 posts) -

@corewalker said:

IMO this sounds a lot like Obama saying the federal gov. isn't going after grandmas with cancer using med pot, only to go after grandmas with cancer using med pot.

It's even worse than that. All the terrible bills we see proposed these last couple of years are a direct result of lobbyists from big media companies. The same companies who have in the past hired those "rights protection" thug companies to blanket sue everyone who they know cannot pay and then slyly offer to go away quietly if they get paid off, which is immoral and reprehensible. These are the guys who are trying to pass this bill.

Yeah, I think we should be scared.

#20 Posted by wafflez (521 posts) -

I don't really think video game clips on youtube are the targeted group here as started in the article. Sure it could come to that, but as long as the developers don't care, I don't see why this would be an issue.

The problem I do have is the NFL streaming. While sure I understand that its 'wrong' and all these companies deserve more money than they know what to do with, my problem is I live outside the coverage for my team. There's no other way of watching it unless I switch providers and pay 200 bucks a season or whatever it has gotten up to. Which I am not going to do. Everytime I watch these streams, I get the same ads as I do when I watch my local fox/cbs. So the advertisers shouldn't be upset. I'd gladly pay for a package to watch my specific team play every game, but I can't unless I switch everything over. If it were equal where all service providers had the same package/coverage, then I'd whole heartily be in favor of the bill stopping that streaming, but its not.

#21 Posted by Agent47 (1894 posts) -
@Sogeman: Wow I didn't know there were so many dicks on GB.
#22 Posted by Conmused (40 posts) -

' However, if someone posts to YouTube with a link back to a web site, which contains banner ads that pay-per-view, that seems to move closer to 'for purposes of ... private financial gain.'

Is... Is that not what giant bomb does? Dos this site not display copyrighted content alongside ad banners? I mean, I doubt game companies mind the free press, but still.

#23 Posted by Chet_Rippo (231 posts) -

There are so many things on the internet that technically should be illegal....Someday we'll all tell our grandchilren about torrenting, and how you could steal everything at no cost.
#24 Posted by Garrador (19 posts) -

Posting simply because the picture you decided to use to sponsor football has my Cleveland Browns in it.

#25 Edited by MrOldboy (868 posts) -

@wafflez: The issue is not that you are seeing the ads. There are a few problems.

The people watching the streams you refer to cannot be accounted for so tv stations showing, for example, NFL games dont get paid for those ads. The more people watching, ratings, the more they get. For example, NBC produces what you see, not Transformers 3.

Its a double middle-finger to producers of the content since people who stream the content, while profitting via ads on the stream site, make money. Whoever produced the content doesn't see a cent.

There are other options instead of using stream sites, I wont go into them.

My question is, will streamers who do not intend to profit be affected? From what I've read, people streaming nfl games without ads dont fall into the category the bill covers... Do they?

#26 Posted by Video_Game_King (35838 posts) -

Shit, the Earth is going to crash into the Moon because of this bill? Fuck you, America! Such a violent act of war cannot go ignored! TO ARMS!!!

#27 Posted by fox01313 (5061 posts) -

Well it's another attempt to fight the piracy of copyrighted stuff, time will tell if it works or not as just about everything done about piracy & the internet in the past has left loopholes for people to keep finding what they are looking for.

#28 Posted by Nux (2294 posts) -

@GaspoweR said:

Well, that's a relief, Thanks Patrick!

#29 Posted by afrokola (547 posts) -

I love all the people whining about this who know nothing about the bill. Thanks for the well detailed piece, I'm sure a lot of people who weren't informed properly will now feel at ease.

#30 Posted by whatthegeek (60 posts) -

Lawmakers can talk about the intentions of the bill all they like, but unfortunately, the only thing that matters at the end of the day is the language of the bill. Right now,t hat language allows for the worst case scenario. The FBI isn't solely responsible for the enforcement of any law - that is to say, if a video game publisher sees a youtube vid they don't love, they could, in theory, take action against the uploader by bringing the "infringing content" to the attention of the authorities, and possibly taking the uploader to court.  
 
Broad language is never a good thing in a potential law. Broad language leaves far too much wiggle room for that law to be interpreted differently by different lawyers and law enforcement officials, and that doesn't do anyone any favors. 

#31 Posted by Hockeymask27 (3683 posts) -
@JJOR64 said:
@lordofultima said:

@JJOR64 said:

A DSP video? Oh my god...

DSP IS ON A GIANT BOMB NEWS ARTICLE AHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH

The video was informative though so I will cut him some slack this time.
I like DSP just sayin.
#32 Edited by Sooty (8082 posts) -

A DSP video? REALLY Klepek?!
 
With that and the NPD numbers you're on thin ice. Sonny 'fro

#33 Posted by Jeffsekai (7026 posts) -

WHY DID YOU LINK DSP AND NOT THE ULTRADAVID ARTICLE, FUCK YOU KLEPEK.

Fucking DSP is the worst thing every, why would you do that....

#34 Posted by RoboRobb (1051 posts) -

Hmm so if this bill IS passed will it change Giant Bomb permanently?

#35 Posted by whatthegeek (60 posts) -
@Scodiac:  You're absolutely right - there's no reason anyone should be able to steal pay per view events, and anyone profiting from that theft should be punished for it. The problem here is the broad language of the law, and the scope of what it could cover. Under the current wording of the bill, that pay per view pirate could be punished, and that's great, but anyone posting gameplay videos on their site without direct permission from the developer or publisher could also have legal action taken against them. That's not so great. 
#36 Edited by MattyFTM (14328 posts) -

As I understand this law, it will still ultimately be up to the copyright holder to press charges. It is their content being stolen, so it is up to them whether they want anything to be done about it. And the copyright holders (the game publishers in this case) clearly don't care about this stuff. If publishers didn't want their content being streamed over the internet, they would already be doing stuff about it. They would be getting youtube to pull them and be sending out cease and desist notices all over the place. They obviously don't mind that stuff being there. And that won't change when this new law comes in. Absolutely nothing will change. Everyone is making a mountain out of a molehill over this stuff.

Moderator
#37 Posted by whatthegeek (60 posts) -
@RoboRobb: I'd wager they have the consent of the publishers to post  the videos, so no, GB would remain unaffected. 
#38 Posted by Skooky (473 posts) -

Who the fuck is DSP?

#39 Posted by CaptainFish (454 posts) -

I know it won't affect you guys, but what about stuff like crosscountertv? They stream matches of Street fighter 4, sell ads for madcatz and sound blaster gear, but I doubt they have any license to play from Capcom. What about the many Starcraft 2 streamers that make an income off of ads on their live streams while they practice? At some point you could argue scholarship, but these people are totally making money off of streaming copyrighted content. It's not quite the same as streaming a UFC pay-per-view, but does it fall under this bill?

#40 Edited by Blair (2497 posts) -

That YouTube video was way more sensational than it needed to be. Artistic freedom makes karaoke legal in all forms.

Furthermore, I'm going to assume that video games would largely NOT be affected by this bill, simply because publishers/developers love the free publicity that comes along with a viral multiplayer kill or a big comeback in a fighting game. Lots of games are even encouraging players to upload content to YouTube or social media outlets.

I hope this bill isn't passed, but it's not the end of the world.

#41 Posted by forkboy (1113 posts) -

Speaking as a big NFL fan who lives in the UK, losing the ability to watch Green Bay play every week would really suck.  I'm not really outraged about it because I can understand why they'd want to do it, but as a fan it really is a bit poo.  Oh well, have to settle for just the one game a week during the regular season, & no live games during the playoffs, Super Bowl excluded.
 
I have no opinion on how it effects video games.

#42 Posted by MrOldboy (868 posts) -

Never heard of DSP before. I dont like it...

#43 Posted by SeanFoster (854 posts) -

I saw a DPS video where he was playing through Duke Nukem Forever laughing his fucking ass off. Eventually I realized he wasn't being ironic.

#44 Edited by VicRattlehead (1398 posts) -

if i ever click on a story and there's a link to a fucking DSP video ill never come back to this site.... seriously

#45 Posted by rDr4g0n (4 posts) -
@whatthegeek: Exactly what you said. They can say it's not intended for x, but that doesn't mean it won't be used against x. Just look at it this way: say GiantBomb does a quicklook or vid review of a game and they don't review it favorably. Now the publisher has a way to legal demand the review be removed.
#46 Posted by CharlesAlanRatliff (5374 posts) -

Great article, Patrick! I had only seen a thread or two on this subject before but didn't bother looking into what this actually was. Now I know!

#47 Posted by RYNO9881 (625 posts) -

The DSP guy, really? That guy is a complete idiot.

#48 Posted by gosukiller (2324 posts) -

I thought I never had to see DSP again. Used to like those videos, but at some point just got tired of the same bullshit over and over again. 

#49 Posted by CornBREDX (4755 posts) -

I said it before and I'll say it again, legitimate sites and video makers will not have a problem with this. If they're scared by it then they are probably already breaking the law.

#50 Posted by the_Hollow (70 posts) -

ROFL, Looks like DSP finally getting on big sites with he's videos. Very amusing xD.