Abigail Phillips
June 26, 2011

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?

Monica Davis
Before It’s News
June 12, 2011

Ah, the Internet. So much attention is being paid to the glory of this military invention. We base revolutions on access to the Internet. We base civil rights progress on the ability of the Internet to foster communication across vast distances, enabling freedom fighters to connect, interact and tear down the walls of oppression. While we view any threat to the Internet as a threat to global freedom of speech and liberty, some mistakenly ignore repression at home.

Florida’s governor just signed a law that basically says if the cops shoot and kill someone, the records of that incident are exempt from Open Records Laws. In other words, police killiings are none of the public’s business.

While we are on guard for a possible future shut down of the Internet, and as we become distracted by the machinations of various dictators and elites from around the world, the real, actual and ongoing threat our liberties get shoved to the backburner. The real threats to our human rights, and to our freedom of speech, freedom of movement, the real dangers to our freedom from unwarranted and warrant less intrusions, searches and illegal takings are shoved to the back burner, minimized by media hype and diversions.

Tin foil hat wearing ‘activists’ dream of all kinds of things the government and its often careless minions could do to turn the Constitution into a roll of wet toilet paper. The government “could” shut the Internet down; the government “could” herd the population to some No Man’s Land on prisoner transport trains. The government “could” wipe out 90 percent of the population on orders on some real or imagined elite.

Let’s stop focusing on the possibilities and look at the realities. Lets look at some of the ways out of control cops, officials and unindicted civil serpents walk all over our civil rights right now—and think it is their right to do so. Let’s look at the mindset that says any threat to the way police and government officials “do their jobs” is a threat to the very foundations of the government itself.

Yes, let’s look at that great distraction, and insidious way that our government officials and their minions are destroying our civil rights.

The fears generated by hacking, cracking and information warfare continue to suborne our rights. This paranoia is creating a repressive environment where fascist behavior comes out of the closet and rides its pale horse right across the very foundations of our civil liberties. In terms of “cyber war,” a great deal of the vulnerabilities of our global computer and information networks is due to the fact that many governments and companies do not repair computer program vulnerabilities—and, even worse, many computer program developers do not repair known vulnerabilities.

Yet, instead of beefing up security on its networks, some of  the unindicted felons in and out of government want to shut the Constitution down.   Basically, we pay for the consequences of their negligence with our freedoms.

This is comparable to leaving the door open to your business at all hours, not investing in security guards, locks and security systems—and then wanting the government to eliminate human rights and civil liberties of all citizens in order to “protect your business.”

This is often a case abusing our civil rights to protect the careless businesses which leave themselves open to industrial espionage and robbery. This is a case of eliminating the Bill of Rights in order to protect government civil servants who allegedly work for us.

Why should citizens be treated like thieves and criminals because governments, corporations and businesses want to shut the barn door after their carelessness allowed the horse to escape?

Responding to an increase in the number of attacks against computer systems in Great Britain George Osborne,, a government official said

Clearly up-to-date security software has an important part to play in all this, but I would recommend that the British government also takes a close look at its computers and applications to ensure that they are properly patched against vulnerabilities.

In his keynote address on cyber security. ‘George Osborne MP, the UK’s Chancellor of the Exchequer, has said that British government computers are on the receiving end of over 20,000 malicious email attacks every month.” MORE

In an analysis of the diametrically opposed concepts of civil liberty and computer security, Kate Martin wrote

When United States national security objectives include the promotion of human rights and the rule of law, the development of both international law and national laws respecting human rights become matters of national security concern. In this context, the Internet will play an important role in influencing the development of international law and of national laws on national security, free expression and privacy

First, other countries increasingly look to legal approaches to the Internet taken in the United States as a model for their own policies. U.S. government regulation of the Internet, or lack thereof, serves as a vivid demonstration to the world of what one democratic constitutional regime of surveillance and free speech looks like. This regime includes tolerance of extremist speech, using the Internet to counter disinformation by more information, and respecting the privacy of individual communications. At the same time, there is no doubt but that restrictive U.S. actions regarding the Internet will be looked to around the world in order to justify such restrictions in other countries. For example, Ukraine, which is barely emerging from the shadow of totalitarianism and recognized to be of strategic importance to the United States, has recently decreed that Internet connections by all state institutions must be arranged through the three state-owned servers. While the precise scope of this arrangement is unclear, many more Internet users are affected by this requirement than would be the case in other countries because many institutions in Ukraine, such as universities, are still defined as state institutions. Human rights activists in Ukraine are quite concerned that the intent and effect of this edict is to allow censorship of Internet content, both entering and leaving the country, and interception of individual messages. This is a concrete example of how the national security interests of the United States in promoting democracy and stability in Ukraine may be affected by developments on the Internet.

Second, the Internet makes information about U.S. legal models — including information about restrictions on individual liberties approved in the name of national security — much more easily, inexpensively and widely available. Should we be concerned about exporting our models without a full consideration of how those models will work in countries without the historical experience of and a legal culture based on respect for individual rights?

Finally, by transcending national borders, the very nature of the Internet seems to call for a multi-national, rather than unilateral, approach to many of these issues. Martin Bangemann of the European Commission recently called for an international charter regulating the Internet rather than country-by-country laws.(17) Whether such a charter will be developed and what aspects of the Internet would be covered are all questions of paramount importance for worldwide human rights and civil liberties. What restrictions on human rights principles for national security reasons, if any, should be included in any such charter? MORE

There are no easy answers. Civil liberties, computer espionage and computer security remain a confusing jumble of corporate wish lists, reactionary police activity, government crackdowns and global protests. And, as is their wont, institutions, whether government or corporate, view the world in terms of their own wants, wishes and desires. Corporations create vulnerable computer products—and then don’t want to incur the expense of fixing program or network security problems. Governments respond to internal organizational and network vulnerabilities by either denying the possibility that they are vulnerable, or running roughshod over the civil rights of individuals to protect real, or imagined vulnerabilities.

On the nation’s streets, and in its alleys, police officers confiscate cameras and video equipment of film crews and activists. In the real world, cell phones are confiscated and video tapes are destroyed by police officers who want their version to be the only version the world sees. They fear the consequences of their actions being recorded. Unlike in the past, in today’s world, law enforcement has lost the automatic approval of their communities.

When it comes to automatic approval of police actions, people have long since lost their virginity. In a world where police testimony is not as revered as it once was, actual video-recording gives suspects and those taken into custody a voice that they otherwise would not have. Those recordings often are at odds with the “official police version” of events, as is the case below.

Miami Beach police allegedly confiscated video-recording equipment from at least one member of the public and a TV photojournalist after both witnessed officers shooting and killing a suspect on a public street.

Benoit told reporters that police officers — after realizing he had footage of the shooting — forced him and Erika Davis, his girlfriend who was also in the car, to the pavement with guns pointed at their heads. He said officers handcuffed him while they took his cell phone, smashed it on the ground and placed it in his back pocket. He also alleges he saw officers intimidate other witnesses and take their cell phones as well. www.rcfp.org/newsitems/index.php?i=11910The footage that 35-year-old Florida resident Narces Benoit captured on his cell phone has attracted much attention on YouTube. The video shows a group of Miami Beach police officers fatally shooting Raymond Herisse, a 22-year-old accused of using his car as a weapon against police during a traffic stop. Following the shootout, which occurred on Memorial Day, video footage shows police officers noticing Benoit and telling him to move away. After Benoit retreated to his car with the video still rolling, officers are shown approaching him with their guns pointed directly at the camera.

The above-mentioned event is Florida highlights the problem. When police officers believe their actions should not be subject to recording by either citizens or reporters, and when official recordings of the event are restricted from the public, what record will be available to the public?

And the problem will worsen because the governor of Florida just signed a law which exempts official video and audio recordings of police killings of civilians from open public records laws. In other words, the public recordings and videos will not be available to the public, and the police are confiscating and destroying media and civilian recordings.

In addition, public-access advocates said another issue that has arisen out of the Miami Beach incident is that the public may have known little about the shooting if it were not captured on video by Benoit. Under a new Florida law, signed by Gov. Rick Scott on June 2, photographs, video and audio recordings depicting or recording the “killing of a person” are now exempt from the state’s public records disclosure laws. MORE

In the wake of the media and Internet-assisted revolution in Egypt, and other ongoing human rights movements in the Middle East, it is no wonder that the Miami Beach incident has infuriated civil rights activists—including the vaunted American Civil Liberties Union (ACLU) and the National Press Photographer’s Association.

Mickey Osterreicher, general counsel for the National Press Photographers Association, sent a letter to Police Chief Carlos Noriega, saying officers violated the Fourth Amendment right against unreasonable searches and seizures, and First Amendment rights to record in a public place.Osterreicher copied Miami Beach Mayor Matti Herrera Bower on the letter.

“While it may be understandable that your officers had a heightened sense of tension after the shooting of Raymond Herisse that is still no excuse for them to allegedly harass, intimidate, threaten or attack those taking photographs/video on a public street,” Osterreicher said. “Recently in Egypt, Syria and Libya citizens and photojournalists have risked, and in some cases given, their lives to provide visual proof of repressive governmental activities. It is truly a shame that what is viewed abroad as heroic is considered as suspect at home.”  MORE