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Streaming, Congress, Jail and You
by Joey Núñez

Whilst the piracy and free streaming of entertainment such as television, music and cinema content has always been a problem when it comes to the internet, a newly-proposed bill wants to make "public performance" by "electronic means" of "copyrighted content" in the United States a criminal, jailable offense. This prompts uncertainty amongst the gaming community, and poses questions about the nature of video content from games being streamed across the internet, linked to the unique nature of the videogames medium. Resident lawyer Joey Núñez analyses the bill's possible impact on gamers.

What is it with laws in the good old USA, and their recent tendency to screw over gamers? Seriously, Obama, look into this ASAP.

Last week we gave you the rundown on California Assembly Bill 1179, and the Supreme Court decision that shot it down; for those of you keeping count, that’s Awesome Gamers one, Lawmakers nil. Sadly, those pesky congressmen and women are at it again. Enter Bill S.978 which, although not aimed directly at gamers, is poised to have some powerful effects on the gaming community.

In a nutshell, Bill S.978 is a proposed law currently being evaluated by the Congress of the United States, which seeks to bring some serious reform to copyright law in the country, specifically regarding "public performances" by "electronic means" of "copyrighted works".

I don’t blame you if you’re confused. Simply put, what the stuffy congressmen and women call a "public performance by electronic means", we call "streaming". Any audiovisual content which is uploaded or livestreamed by users to video communities, such as Vimeo and YouTube, would be considered a "public performance by electronic means".

Now, as the law currently stands, copyright infringements - for the most part - are considered to be civil matters; this basically means that infringement of copyright laws will most likely result in a fine and a cease-and-desist order from the copyright holder. That's no laughing matter by any means, but the current system is a mere slap on the wrist compared to what Bill S.978 is proposing should happen if a so-called "public performance by electronic means" contains copyrighted material.

What’s the proposed punishment then, you ask? Jail. Do not pass go, do not collect two hundred dollars.

Monopoly references aside, you can see why Bill S.978 is a serious deal. Copyright infringement in these "public performances" would no longer be a civil matter, but rather, the infringement would be considered a criminal offense. What this means is that if you were to violate the terms of the bill (should it become law), you wouldn’t just have to worry about the copyright holder asking you to remove your content, but rather you would also be facing a much bigger opponent: the government, which would be responsible for seeing that the law is upheld and its offenders punished accordingly.

As I said before, this bill is not strictly aimed at the gaming community. Frankly, I don’t think these genius lawmakers even thought of us when putting this bill together; no sir, their sights were firmly set on the music, TV and film industries which are, admittedly, severely affected by the streaming of copyrighted content, a practice which has become incredibly commonplace online. Of course you're not going to pay your cold, hard, well-earned cash for those Xena: Warrior Princess DVD's when you can just stream those episodes for free online. But you should: you can imagine that this kind of streaming costs a lot of people considerable amounts of money, but why should the gaming community care?

If you are reading this I will assume two things about you: (a) that you are a gamer, and (b) that you know your way around a computer. Based on these two assumptions, I’m going to go ahead and make a third: that, at some point, you have watched online footage of games that you are interested in, be that walkthroughs, gameplay videos or reviews, made by gamers just like you and me. It's obvious where I’m going with this. Under the provisions of Bill S.978, any live stream or uploaded audiovisual content containing footage from videogames is basically an electronic performance including copyrighted material. After all, videogames are copyrighted materials.

YouTube alone is filled with hundreds of accounts specialising in videogame content, which are a great source of information for us gamers. I can’t remember the last time I bought a game without checking out some gameplay footage on YouTube first. And I'm not talking about those conveniently-pretty gameplay trailers put together by the publishers to be just-so, but instead I mean raw, unbiased footage captured by a gamer just like me. You can kiss those videos goodbye should this bill become a law, along with footage of gaming tournaments, and even raw E3 footage not prepared by the big companies. The only way content providers would be able to continue to create new footage and keep the footage they have online is by obtaining express permission from the copyright holders. Do you see game publishers responding to thousands of emails requesting permission to post videos? Me neither. The effect on the videogame videoblogging community would be disastrous.

I can see the purpose of bill S.978, and recognise the harm that piracy and streaming have done to the TV, film and music industries, but the concerns which the U.S. lawmakers are trying to address with this bill simply do not apply to the videogame industry. When you stream a movie or series, you are getting the full experience that the product offers without paying the applicable price, and that’s because we are passive observers of these types of media. However, when it comes to videogames we’re talking about interactive experiences; simply watching a video of a game doesn’t come close to replacing or replicating the full experience. Furthermore, in what way is Capcom hurt by my watching of "the best Street Fighter 4 fights" on YouTube? To the contrary, streaming is probably the best form of free publicity for gaming companies today. Proof of this is that, as the law stands today, Capcom - or any other gaming company - can legally force content providers to remove any audiovisual material which they have posted containing footage of their games. Approximately 99.99% of the time, though, they don’t.

If the bill passes, will the government be so permissive? I doubt it. But, a better question yet still: will our content providers be willing to risk jail time? I think you know the answer.

If you are reading this and think you will be affected by the bill, I urge you to read the full text of the bill. I should be clear in stating that in order to actually violate the terms of the bill, the content provider has to post at least ten so-called "performances" during an 180-day period, and that the economic value of such performances must be equivalent to a minimum amount. These are loopholes which could exonerate some livestreamers and videogame videobloggers from a penalty should this bill become law, but videobloggers who continually post videos and streams online and receive revenue through advertising or other means probably won't be so lucky.

The bill is a long way from becoming a law, and hopefully before that happens the vague and broad wording of the current text will be modified so that gamers won’t be affected. If you want to contribute to the effort to make sure the bill makes exception for the gaming community, or if you feel the need to express your discontent with the law, please do so: fill out the form here.

Hopefully, our digital voices will be heard.

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- Joey Núñez

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