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Making felons out of bloggers

Posted by Richard on June 3, 2011

Copyright law in this country is already pretty screwed up, and it's obvious that the entertainment industry has Washington wrapped around its little finger. But who would have thought that a bill like S.978 would be given serious consideration?

From time to time, I embed YouTube videos in my posts. As Mike Masnick noted, doing so if this poorly drafted bill passes could get me five years in the slammer:

If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link… you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand.

This is so wrong in so many ways. First of all, as Masnick pointed out, the drafters seem to know little or nothing about such things as streaming, linking, and embedding, and they throw in an undefined phrase like "performing by electronic means" without a clue as to what the consequences are.

Secondly, what happened to fair use? When I embed a video on this blog, I don't charge people to watch or listen. How is what I'm doing any different from inviting some people over to my house and playing the same song or video? Or will that soon be a crime, too?

Thirdly, even if this is legitimately a copyright infringement, how in the world does it rise to the level of a felony with punishment comparable to burglary or bank robbery? Why isn't it simply a civil matter?

And furthermore, there's the issue of mens rea. It used to be a well-established (hundreds of years of common law precedent) principle of the law that, to be guilty of a criminal act, you have to have criminal intent. 

The critics of mens rea often pompously declare that "ignorance of the law is no excuse." Nonsense. With laws and regulations with the force of law now running into the millions of pages, how can anyone not be ignorant of the law (or at least a large portion of it)?

The "reasonable person" test should apply. If a video is posted on YouTube and hasn't been taken down at the request of the copyright holder, a reasonable person (like me) can reasonably presume that either it's not subject to copyright or the copyright holder has chosen to allow its dissemination.

S.978 deserves to die an ignominious death. Contact your senators and let them know what you think of this ridiculous bill. 

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3 Responses to “Making felons out of bloggers”

  1. Rick Shultz said

    If THIS lady wasn’t a reasonable person then I don’t know who is. What the hell is going on with these people? Are they insane?

    “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for

    men to live without breaking laws.” – Ayn Rand

    Rick Shultz

  2. rgcombs said

    Rick, that’s the perfect quote for this. Thanks!

  3. Rick Shultz said

    Thank you again Richard. I would like either this quote or the following one to be my epitaph.

    “Life is full of odd moments…you never know when you’re gonna get defiant”..Hunter S. Thompson

    :=)

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