Intentional infringement = criminal penalties. Sorry, but that's the rule of law, i.e., the very bed they made for themselves. Everyone knows the Superbowl is proprietary. The NFL says so during the broadcast.
That seems like an awfully arbitrary statement to make, especially when copyright infringement is largely a civil issue. Not to mention that grellas is an attorney, so I assume he knows what he's talking about. As I understand it, criminal charges are only warranted when the copyrighted material is sold commercially.
IAAL, too. Does that mean you'll just assume I know what I'm talking about? I've been practicing technology law for a decade and a half in New York. You'll have to excuse me if I find your attitude a little insulting...
Section 506 doesn't say "sold commercially". It says for commercial or private gain. Any lawyer worth his salt could argue that showing the game at a private promotional event for a company falls under the statute. Much more spurious arguments have been made.
From what I recall, sunchild is an attorney too. Your reference doesn't back up what you say; it's not restricted to material sold commercially. Merely for "purposes of commercial advantage" is sufficient.
"Emphasis should be placed on the word "purpose," because it is not necessary to prove that any profit was realized. See United States v. Taxe, 380 F. Supp. 1010, 1018 (C.D.Cal. 1974), aff'd, 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977). The drafting committee's purpose in retaining this requirement has been to exclude from criminal liability those individuals who willfully infringe copyrights solely for their own personal use. H.R. Rep. No. 997, 102 Cong., 2d Sess. 5 (1992). Evidence of discrete monetary transactions (i.e., the selling of infringing goods for a particular price) provides the clearest evidence of financial gain, but such direct evidence should not be a prerequisite to prosecution. Such a stringent requirement would ignore the plain wording of the statute, which requires only the showing of commercial or financial purpose."
For the record, I think criminal penalties for copyright infringement is bad policy. Whatever public interest there was in copyright protection has long since been overwhelmed by private interests that belong in civil courts.
It's not a civil issue at all (in the USA). It should be. But the IP industry has convinced government to do their policing and enforcement. One infringement is up to 5yrs and/or $250,000. It's, of course, up to judge to determine sentence. But, they should be prosecuted and forced to pay for defense just like all other IP industry victims.
I would like you to explain your rationale for respondeat superior in a case like this, ie the idea that the executives should be charged because of the misdeeds of a subcontractor or junior staffer. It seems to me that the problem here is the difficulty of establishing that Vevo execs said 'throw a party, and make sure it has the superbowl but not in a way we have to pay for, heh heh.' How would you show, as a prosecutor, that it wasn't simply corner-cutting by the event services firm? (I don't know for sure if the event services were contracted out, but that's how these things are usually done.)
Sounds like an issue for the judge/jury. That's what trials are for. The standard is willful infringement, and that would need to be proved for any criminal defendants. There are also tests for whether the distribution rises to the criminal level (e.g., over a period of 180 days or of materials that have not yet been released, and so on). The question isn't whether the criminal charges would stick, but whether there is a public policy and a rule of law that supports bringing them in the first place.
I'm having a really hard time getting 'distribution' from having it on a screen at a party. Infringement yes, hypocrisy yes, civil suit yes, but criminal liability? Well, it's kind of moot. I'll agree with you that it's a mark of how broken the copyright laws are that we are even attempting to have a serious discussion about criminal liability in this incident.
Section 506 says distribution means: "...by making it available on a computer network accessible to members of the public..."
Oddly enough, that would seem to capture broadcasting a stream, even though they probably were thinking of file sharing when they added that language. Equally odd is that if the broadcast had been in an analog format, it wouldn't seem to pass that test.
An interesting argument, though you could attack both the meaning of broadcast when the scope was purely local, and of accessibility to the public, assuming a VIP party was invite-only and/or that the feed was view-only rather than offering interactive terminals. But it's certainly no more strained than some of the claims that have been raised in industry-driven prosecutions.
Apologies if I came off as snippy yesterday. The strident tone of the uncrunched.com link didn't sit well with me, so I read the thread with a rather jaundiced eye.
http://www.copyright.gov/title17/92chap5.html#506