Wait A Minute, Could Uploading Video Of Video Games Really Send You To Prison?

It might in the future, according to one reading of Senate Bill 978, assuming it gets passed. This is a proposed law put before the Senate about a couple months ago, but the games community just sat up and noticed once it read the language and understood the totality of its prohibitions.

The proposed law is ostensibly meant to criminalise streaming copyrighted content (an act currently subjected to civil law provisions only). So S.B. 978 defines that behaviour as a performance of copyrighted material, and defines a performance as "10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works." Do the imbeciles who wrote this language even use YouTube? That's practically the entire service.

This is a lay opinion only, but if the bill becomes law and someone goes to federal pound-me-in-the-ass prison for putting Grand Theft Auto IV multiplayer on Ustream, I foresee an immediate challenge on grounds of fair use, not to mention a big argument over what a performance is—code on a video game, or the unique actions the user makes with it.

Advocates for S.B.978 stress that they're just trying to "harmonize" the criminal code with the civil code. Currently only copying and distributing copyrighted works can actually get you landed in jail. Why a criminal penalty is necessary now is a rhetorical question answered with "Because the recording industry and filmmaking lobbies have given lawmakers a bunch of money to see that it happens."

What's more likely is this is a tool for use in selective enforcement. A how-to guide for L.A. Noire won't get someone in trouble, but a leaked trailer will. Best of all, corporate counsel doesn't have to file the case. Just hand the matter over to the feds and they'll handle everything from investigation to the costs of trying the case. Given that we've seen takedowns of uncomplimentary videos on copyright grounds, who knows how far this will reach.

Writing on his tumblr blog, Minecraft creator Markus "Notch" Persson offers that many games publishers, especially his, will include provisions in their Terms of Use that permit the use of their video games for such purposes. As well they should; walkthroughs, crazy kill cam videos, and Greeeeeeeg Jennings puttin' the team on his back for Madden, have a tremendous promotional effect that is tremendously free.

While I'd like to think that everyone's overreacting a bit and that there is no way game video uploads are meant to be prosecuted, knowing how colossally fucked-up and straight-up bribed the U.S. Congress is, the concern is understandable.


Comments

    It's not just games that this law will effect. If the bill is passed, it provides for ANY copy righted material. If you are singing karaoke with your friends and upload a video of it, bam, jail. Filming at a concert with your phone, jail. Video of your pet or loved ones and there is a movie on in the background, jail. It will pretty much ruin any video streaming website that adheres to US law.

    I doubt this well ever see the light of day, maybe in a less strict form but this is going to mean I can't upload a video of my birthday because people are singing the song!

    Post a screenshot of damage meters in an mmo - Jail.
    Post a kill cam - Jail.
    Hell, techincally speaking, post the logo of a company - Jail.
    Post a video of you walking in the park - Jail, because in one frame there's a guy eating macas, and the logo is on the bag.

    You link from your blog to a company, using it's official logo, and the company is like "That's really cool, thanks." They don't want you in jail, but by law because you didn't have the rights when you made it, soap on a rope time. The company can't choose to press this, the company can't even say "Stop, it's okay", they're forced to put you in jail.

    The whole thing is stupid - I get it's meant to stop torrents, youtube postings, etc, but they can already put people in jail for this now. What will happen is social advertising - something that honestly sustains the music, cinema and game industry more than the tv, magazine and irl ads do - will drop off. How many people give their friend a song and go "Here, listen to this"? JAIL TIME. I'm sure I'm not the only one who buys select songs because they heard it on the internet, or from a friend.

    Hell, you can't even say the name of the game or company, because that's copyrighted too.

    The biggest issue, is that it targets the person, not the host - which the current law does. This is only an issue with how ridiculously inclusive it is.

    Government is so retarded sometimes.

      This is exactly the issue. Most game developers are more tha happy to have people put gameplay videos up, as it's the interaction that they're really selling, and you don't get that from a video. However, regardless of how the developer feels about how their own IP is used, because it's a federal crime, they have no say. Absurd.

      These
      "act containing copyrighted material" - jail
      Were just getting good!
      Keep them coming!

      Vlogger walks around a house with the lights on -jail
      Walk in the streets with a camera -jail
      Try to sing game theme song - jail
      Make cute keyboard cat video, sounds like a popular song -jail
      Streaming Security camera footage clips an iPhone app being played -jail
      Film a video outside of confienment -jail
      Upload pic to fb, tv is on In the background -jail

    If it has (probable) selective enforcement and exemptions in gaming terms of use anyway, I can't see how this is really a problem.

    Envisioning that the criminal law will automatically be applied in every case to the greatest possible extent may be a little cynical

      Probable won't mean shit.

      Look at how Sony acted over those codes Hotz posted because of the "potential" to increase piracy even though they had no evidence whatsoever on it's actual effect or potential effect (hence why they tried to move the case to California so they would win regardless).

      Companies will jump on this bandwagon like crazy just to score some extra money because regardless of the bad PR idiot mouth-breathing fanboys will stick with them.

      You're most likely correct that people are being cynical and thinking the worst. Though it does give them a legal channel to charge you with and as unlikely as it would be I'm sure you and most people would suddenly change their tune when you're made a 'example' of. People are more worried that such a type/style of law just isn't really required.

      Selective enforcement isn't a good thing.

      Imagine that you get arrested by the police but they can't find the supporting evidence and it looks like they'll have to let you go.

      They then discover that you have a YouTube account with video game walkthroughs for games where you don't have an explicit license. Since it is a criminal matter, the copyright holder doesn't need to initiate a civil case (or even know about the violation) and they arrest you for that.

    Not a lawyer or anything, but how far will law enforcement go to enforce these kinds of laws? Considering just the mass amount of content that is uploaded onto the net that features copyrighted media?

    It seems absurd that the government think they can handle the sheer mass of people that will probably found violating the laws intended to be set in by this bill. Or they just aren't thinking.

    Specifically, with video games, 'let's plays', playthroughs, achievement guides and 3rd party made previews and machinima should be seen more as free advertising than anything else, and to think that these laws are in the best interests for the content providers, I would say otherwise.

    Ultimately, I would think even if the bill is passed, just the amount of content will prevent strict enforcement of these laws, and perhaps will only be used on mass content providers that use copyrighted material; and perhaps more that use copyrighted songs and films, rather than video games.

    I guess we'll just have to see.

    umm... who cares, i dont live in the us and thus us laws dont affect me

      Idiot. If this law passes, it will empower other places to do the same. Think it won't affect you? Think again, because if passed, it soon will, so get off of your lazy, apathetic ass and do something about it.

      YouTube, Vimeo, machinima, Rooster Teeth, etc. Viral videos, memes, etc... as a gamer, it will affect you in some way, likely in a large way. You don't have to live in America to be affected by their laws. It's safe to assume that around 90% of the content you watch is from the US.

    this is illogical, way to go at clogging the legal system with such trivial matters.

    The US Senate hates spoilers.

      +100000000

    Hmm, overly litigious application of this law might dramatically increase my productivity.

    One of my favourite timewasting/boredom busting activities is watching Let's Play videos* off the Something Awful forums and the LP Archive.

    *A recording of a game with commentary by the player, usually enlivened by one or more commentators to keep the banter flowing.

      I remember watching SA let's play of Sonic the Hedgehog 2006.

      They were so happy at the beginning, fools had no idea what they were getting themselves into. . .
      Watching them fall deeper and deeper into the depths of despair as they continued on with that train wreck of a game was a thing of beauty, the self destruction of the human mind.

      To know I might never get to see such a thing again. . .

    The owner of the material would have to complain about it first wouldn't they?

    I am assuming this would just be putting power into the hands of the owner, that way if someone is uploading say.. the entire series of some TV show the owner of the material can take action?

    Who in their right mind is going to take action against a person uploading awesome videos of their game to the internet, it's free advertisement.

    Unless of course the person is showing videos s/he is not meant to be showing, then sure they deserve to get in trouble.

    This could potentially play well into the publishers/game developers hands, I can imagine something like the new call of duty 'extra'(?) or whatever it was called might become the only place people can freely upload game play videos thus ensuring people sign up to watch and upload.

    Common guys smarten up, it's illegal to record shows on tv, it's about making laws that cover all, but in practice go after what they intended

      No it isn't it's illegal to watch a recorded piece of TV more than once.

      But this is like most other laws these days its being put in place to allow movie and Tv studio's to live in the dark ages still instead of adapting to the change in the world.

      There is still no one that is willing to sell me HQ digital copies that i can keep on my computer indefinetly.

      And australia unlike the US suffers from a stupid rule that we can't legally back up a movie if we remove encryption on the disc and most movies wont play if they have been copied and have encryption

    I reckon they should make a law prohibiting anyone from doing anything that the government doesn't want them to do!

    Goddamn Americans. Can we just annex them from the Internet? You know, get rid of all this BS they seem to keep pulling, so the rest of the world can try and live in some kind of harmony (well, as harmonic as you can get I suppose when some countries think Internet is a human right and others demands to censor everything)?

    /Damnit/, America. And here I was thinking thought you were doing a better job of not proposing crackpot internet legislation than Australia...

    The worst thing I can see about this is that they can put you in gaol for something petty like this, and then it'll be declared on the news that you were some sort of mega-pirate ripping off hard-working poor game developers, selling pirated software on inferior quality media, ripping off hard working families. By the end, so much FUD would be dispersed people wouldn't feel sorry for you any more.

    Oh wait, this sort of thing already happens.

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