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New copyright law won’t jail Bieber

By | Published on Tuesday 25 October 2011

Justin Bieber

An online campaign in the US capitalising on the Justin Bieber phenomenon has thrown the spotlight on a new bit of legislation being considered in US Congress which will make it a criminal offence to stream copyrighted material without the rights owner’s permission. Under the proposed new laws, anyone doing so could be jailed for up to five years.

With various anti-piracy measures being considered in the American political arena just now, this particular proposal hasn’t got so much coverage. Until now. An organisation called Fight For The Future has set up a website titled Free Bieber. The site is a call to action to encourage people to oppose the new legislation (even though you might think any law that would result in the Bieber being out of all our ways for five years is something worth supporting).

The logic is that Bieber first rose to wider attention by posting videos of himself singing other people’s songs – without said songwriter’s permission – to YouTube. That, Fight For The Future concludes, would make the teen pop icon guilty of a felony under the proposed new law, meaning the popster could be jailed for five years.

But, as the Copyhype website has pointed out, that’s not the case at all. First of all YouTube is a licensed platform, with agreements in place with collecting societies around the world so that songwriters whose work is covered on the video site get a royalty. And, of course, there’s the take-down system – operated under the US’s Digital Millennium Copyright Act – so that rights owners can request versions of their works appearing on the video site be removed. For these reasons YouTube is not liable for infringement under the civil copyright system, so would not be liable under the proposed new criminal laws either.

And even if that wasn’t the case – ie YouTube wasn’t licensed and didn’t operate a workable DMCA takedown system – it would still be YouTube and not Bieber which would be liable under the new laws. Under existing copyright law, in theory Bieber could be targeted because, by uploading his videos, he is making a mechanical copy of someone else’s work without licence. Though in reality any rights owner suing would go after the owner of the website, who is allowing unlicensed performances of the song, rather than the individual who uploaded the original copy.

Plus, according to Copyhype, the new criminal law would only apply to unlicensed performances, not unlicensed reproduction, so the Justin Biebers of this world would be explicitly excluded from the new laws, even if they made use of a YouTube rival without licences or a take-down system in place.

So, sorry Bieber haters, this new law won’t be putting the pop irritant behind bars. Not that those who oppose stricter copyright rules are necessarily wrong for opposing these new legislative proposals, but their current arguments are definitely incorrect. For a more detailed critique see the Copyhype website.

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