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US COVID-19 relief bill would punish streaming of copyrighted content

Legislation for $300 weekly unemployment bump adds possibility of ten-year prison term for streaming protected content, would also create small claims Copyright Claims Board

A COVID-19 relief bill under consideration by US legislators also includes a number of measures related to copyright law that could negatively impact game streamers.

A House amendment to the Consolidated Appropriations Act of 2021 introduced today would extend unemployment benefits in the US by $300 a week through mid-March 2021, but it also incorporates elements of recent legislation proposed by Senator Thom Tillis (R-NC) that would establish a small claims Copyright Claims Board and specifically make digital transmission of copyright-protected works a crime punishable by up to 10 years in prison for a second offense.

According to the language of the bill, "It shall be unlawful for a person to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that- (1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; (2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or (3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law."

This raises particular questions for YouTube, Twitch, and Facebook Gaming, considering the games influencers often showcase involve a number of copyrights, from the games themselves to licensed music featured in them. There have also been copyright lawsuits over tattoos on athletes in pro sports games.

Twitch in particular has faced a torrent of Digital Millennium Copyright Act claims from music labels this year, so much so that the platform advised streamers to play games with the sound off if they had any doubts about copyright.

The Copyright Claims Board has also been a point of contention, with the Electronic Frontier Foundation saying it would "re-ignite the nationwide problem of copyright trolling" just as federal courts have started to demand stricter standards of evidence in such cases.

The board would be limited to issuing rulings of no more than $30,000 plus legal fees in favor of claimants. Additionally, all information about the claims board proceedings except for the final determination and records would be exempt from Freedom of Information Act requests.

The bill is expected to pass, with Congressional Democrats and Republicans saying yesterday that they had reached an agreement on the COVID-19 relief package.

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