From: TeaParty@TeaParty.org Sent: Friday, July 01, 2011 Subject: Tea Party - Illegal Internet Use
"I'm From The Government and I'm here To Take Your Internet Freedom!"
Efforts to harness law enforcement resources in the service of copyright enforcement continue apace. Last Thursday, the so-called "illegal streaming" bill passed the Senate Judiciary Committee (although that's still some way away from becoming law). The bill would increase criminal copyright penalties to allow jail time of up to five years for infringing a copyright by "publicly performing" the copyrighted work, such as playing a sporting event broadcast or motion picture. (Currently, the maximum criminal penalty for unlawful public performance is a fine and/or prison sentence of up to one year.)
Fortunately, there are limitations on when the new criminal penalties would apply. For example, only 10 or more unlawful public performances within a 180-day period would trigger the provisions. In addition, the current criminal statute contains basic thresholds such as a requirement that the infringement be willful.
The basis for the bill appears to derive from a list of legislative requests issued earlier this year by the Obama Administration's IP Enforcement Coordinator, including a recommendation to establish that online streaming of infringing content can be punished as a felony.
The push to increase penalties from misdemeanor (which they are now) to felony (which they would be under the bill) apparently is being driven in part by a belief that law enforcement will be more motivated to prosecute crimes that have more severe penalties, no matter that the criminal laws are supposed to be designed to deter and punish bad guys, not instigate good guys. We have to question the judiciousness of devoting spare government resources to prosecuting this kind of activity. It seems to us that illegal public performance is the kind of economic concern that can be effectively managed through existing civil remedies. Moreover, criminal copyright prosecutions need to show all the elements of civil copyright infringement, something civil courts are traditionally much better versed in.
In general, a "public performance" of a work under the Copyright Act occurs when a work is performed before a substantial gathering of people (for example, a concert) or when the work is transmitted in a way that it can be accessed by members of the public, even if individuals receive the performance in different places or at different times (for example, a TV broadcast).
As an initial matter, it's hard to narrow the kinds of activities such a bill could potentially encompass. Practically speaking we wouldn't expect to see most of these pursued or prevailing; however, uncertainty and the fear of prosecution and defense expenses could well discourage innovation in online services and lawful speech.
For example, while the legislation conceivably could capture hosting platforms like YouTube and caching services like Akamai, the lack of volitional conduct on the services' part likely exonerates them. 
Presumably, too, one who merely embeds or links to a video would not be deemed to be making a public performance. Although at least one court has found copyright infringement where a website streamed content inline from another website, we believe that case was wrongly decided. On the other hand, ongoing law enforcement efforts to invoke provisions of the criminal law to seize domain names of websites that link to streaming content suggest that linking may yet be a target.
Online video distributors and providers of subscription TV services who rely on statutory licenses may have more pronounced concerns given that a violation of those licenses might appear to risk triggering the felony provisions. Likewise, copyright holders may use the threat of prosecution as leverage against broadcasters who transmit content pursuant to a license under dispute.
As for the individual who believes she is making a fair use of copyrighted work, she'll want to be pretty confident or hope she can argue other thresholds in the bill are not met. It doesn't seem likely this is the kind of activity prosecutors will pursue; then again, who wants to take a chance on five years' jail time? http://teaparty.org/article.php?id=952
The proposal suggests that with such information, police would be able to see who exactly is on the network, where they go, and who they talk to.
Denmark Police Propose Ban On Anonymous Internet Use. Imagine if the police knew exactly what you do online: All the porn sites you scan secretly, the vitriolic comments you leave on blogs, the number of hours you spend playing Farmville. In Denmark, police have recommended to Parliament that it create laws that make it impossible for citizens to surf anonymously. According to Danish-language blog Computerworld Denmark, the proposal is intended to help investigate terrorism. In the proposal, locations providing open Internet, like cafes and libraries, would have to confirm a user's identity, with some form of official ID, before letting them get online. Companies may also have to register and verify users' identities before providing access, as well as retain records of user logs. Danish law already requires that ISPs store user data for at least a year, as an anti-terrorism measure.
The proposal suggests that with such information, police would be able to see who exactly is on the network, where they go, and who they talk to.
Such a move would have serious privacy implications. But another problematic facet of the proposal is in the nature of online identity itself. Founder Christopher Poole recently defended web anonymity against those, including Facebook, who believe real-world identity and web identity should be one.
"Anonymity is authenticity," said Poole. "It allows you to share in an unvarnished, unfiltered, raw and real way. We believe in content over creator." http://teaparty.org/article.php?id=953
