I've finished my final writeup!
SOPA 2014: Voluntary Agreements, TPP, and StaydownEDIT 3/22: Added some links, some additional notes, and some credit. (Also added some of the same on 3/17)
A few days ago, I started seeing journals once again ranting about how SOPA is going to take away our fandom, or even our original content, in my feed here on deviantART. I did a search for reputable sources talking about it, and found just enough to be worth discussing, but not enough to justify the panic that's happened. I vowed I would do a journal about it come the weekend.
Since then, it's blown up. I've had numerous new faves on my old write-up of SOPA 201, despite it having "2013" in the title. I wish I could be happy as well as flattered, but the piece of potential legislation I wrote about then isn't the one people are talking about now. People have been calling for me to explain the "New" SOPA, but research to cite has been scant and so has my time. I have many more obligations now than I did then, and I wrote the last article at a much less busy time
And my friend did a petition that covers my points:
Are you here about SOPA 2014? I'm still working on my write-up of the latest SOPA Scare. Most of the research is done, and I am in editing/petition hunting now. If you'd like to see what I have, and maybe even help, the link is here:
Please do not use the article you're looking at now, "The Real Story on SOPA 2013/Section 201," to figure out the current situation. It has NOTHING to do with the two things that have people crying that SOPA is back this time.
EDIT 3/12/2014: This article is OUTDATED and does not apply to the latest "SOPA scare." I'm hoping to write up a more detailed article on the new SOPA, but last I checked research was light, and these things take time.
The new SOPA is more serious than this one, but not as serious as most people on deviantART are saying. It's my understanding that the new SOPA won't change the already dubious legal status of fanwork... it will only make it harder for hosts, search engines, and directories to resist financial pressure from copyright holders to disallow these things.
This is not as bad as the original SOPA, so stop scare mongering.
I will post more when I am able.
Edit 6:50 P.M. EDT 8/24/2013: Made a minor edit for clarification when discussing fair use, and fixed some minor mistakes. Thanks to cneilson for the tip!
If you do not want to read my analysis of the law, please use ctrl + f or command + f to search for "Conclusions of Analysis" where I will explain how my findings should effect the petition.
Line by Line Analysis of SOPA Section 201
(a) Title 17 Amendments- Section 506(a) of title 17, United States Code, is amended to read as follows:
`(a) Criminal Infringement-
`(1) IN GENERAL- Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--
`(A) for purposes of commercial advantage or private financial gain;
`(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, or by the public performance by means of digital transmission, during any 180-day period, of 1 or more copyrighted works, when the total retail value of the copies or phonorecords, or of the public performances, is more than $1,000; or
`(C) by the distribution or public performance of a work being prepared for commercial dissemination, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial dissemination.
`(2) EVIDENCE- For purposes of this subsection, evidence of reproduction, distribution, or public performance of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
That's a doozy. Basically, the original passage is specifically designed to nip piracy of unreleased movies in the bud. This broadens the scope to include works that are released in other places first, or not released here at all. It's designed to close a loophole in the existing law, but it has a potential chilling effect on the distribution of things that are not intended to be localized, like anime and manga that aren't in negotiations to be adapted. I think you could still make an argument for work that will NEVER be released here being ok under this, but I AM NOT A LAWYER. I'm a history teacher.
`(3) DEFINITION- In this subsection, the term `work being prepared for commercial dissemination' means--
`(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution or public performance--
`(i)(I) the copyright owner has a reasonable expectation of commercial distribution; and
`(II) the copies or phonorecords of the work have not been commercially distributed in the United States by or with the authorization of the copyright owner; or
`(ii)(I) the copyright owner does not intend to offer copies of the work for commercial distribution but has a reasonable expectation of other forms of commercial dissemination of the work; and
`(II) the work has not been commercially disseminated to the public in the United States by or with the authorization of the copyright owner;
(B) a motion picture, if, at the time of unauthorized distribution or public performance, the motion picture--
`(i)(I) has been made available for viewing in a motion picture exhibition facility; and
`(II) has not been made available in copies for sale to the general public in the United States by or with the authorization of the copyright owner in a format intended to permit viewing outside a motion picture exhibition facility; or
`(ii) had not been commercially disseminated to the public in the United States by or with the authorization of the copyright owner more than 24 hours before the unauthorized distribution or public performance.'.
Basically, this creates a lifetime cap of ten infringements before you become a felon, instead of letting it reset after 180 days. I don't really find this part offensive.
(1) in subsection (b)(1), by striking `during any 180-day period' and all that follows and insert `of at least 10 copies or phonorecords, or of at least 10 public performances by means of digital transmission, of 1 or more copyrighted works, during any 180-day period, which have a total retail value of more than $2,500;';
(2) in subsection (c)--
(A) in paragraph (1), by striking `of 10 or more copies or phonorecords' and all that follows and inserting `including by electronic means, of at least 10 copies or phonorecords, or of at least 10 public performances by means of digital transmission, of 1 or more copyrighted works, during any 180-day period, which have a total retail value of more than $2,500;'; and
(B) in paragraph (3), by striking `if the offense' and all that follows and inserting `in any other case;';
Basically this passage reserves the harshest penalties for people who are profiting from copyright infringement and protects people who are attempting to use fair use for the public good from the harshest penalties (it does not absolve them of criminal or civil responsibility in total, though). Still, it does increase the span of people who can receive this penalty to people who are doing this for any kind of financial reason.
(3) in subsection (d)(4), by striking `under paragraph (2)' and inserting `committed for purposes of commercial advantage or private financial gain under subsection (a)';
So this is basically saying only the copyright owner is allowed to stream something. This would effectively outlaw Youtube cover videos more thoroughly than they are now. It also mixes up some definitions.
(4) in subsection (f)--
(A) by amending paragraph (2) to read as follows:
`(2) the terms `reproduction', `distribution', and `public performance' refer to the exclusive rights of a copyright owner under paragraphs (1), (3), (4), and (6), respectively, of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17; and';
(B) in paragraph (3), by striking `; and' and inserting a period; and
(C) by striking paragraph (4); and
This basically stipulates that if no one would pay for it and the copyright owner or thief weren't charging for or getting ad revenue for it, you can't really go after them. That doesn't really change much, though.
(5) by adding at the end the following new subsection:
`(g) Evidence of Total Retail Value- For purposes of this section and section 506(a) of title 17, total retail value may be shown by evidence of--
`(1) the total retail price that persons receiving the reproductions, distributions, or public performances constituting the offense would have paid to receive such reproductions, distributions, or public performances lawfully;
`(2) the total economic value of the reproductions, distributions, or public performances to the infringer or to the copyright owner, as shown by evidence of fee, advertising, or other revenue that was received by the person who commits the offense, or that the copyright owner would have been entitled to receive had such reproductions, distributions, or public performances been offered lawfully; or
`(3) the total fair market value of licenses to offer the type of reproductions, distributions, or public performances constituting the offense.'.
So basically this is saying "Look, you can be slapped with all sorts of civil lawsuits and minor criminal charges for redistributing something you don't have the rights to... but if it looks like you genuinely had a good reason to think it might be ok, you won't go to prison for six years over it."
(c) Rule of Construction- Any person acting with a good faith reasonable basis in law to believe that the person's conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.
Conclusions of Analysis
- Posting a Let's Play on youtube
- Posting a fansub of an anime that is not intended for dubbing
- Posting an AMV
- Posting a lyrics video
- Posting your own cover of a copyrighted song
- Singing "Happy Birthday" in public