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U.S. Senate considers jail time for copyrighted video streamers

Our gaming friends to the south let out a collective sigh of relief a couple of weeks ago when the United States Supreme Court struck down a California law that banned the sale of violent games to minors. However, American gamers are now beginning to rally against a bill set before the United States Senate (S. 978-the so-called "anti-streaming" law) that would amend the criminal penalty for streaming, playing, and reproducing copyrighted materials to include a potential prison sentence of up to five years.

How does this affect gamers? The Entertainment Consumers Association (ECA), a group petitioning the legislation, says it could make something as innocuous as recording and sharing a walkthrough of your favourite game a criminal offence punishable by jail time.

The proposed amendment can be seen here. It states that the strict new punishment may be applied if: a person makes available 10 or more public performances of a copyrighted work; the total value of the performances is deemed to have a retail value greater than $2,500; and if the licenses associated with these performances are deemed to have a fair market value in excess of $5,000.

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As the ECA points out, the concept of value when it comes to the streaming of a recorded game clip is nebulous. This gives the copyright holder-say, a game publisher-the ability to assess the material's worth on its own. It's essentially a loophole that permits a publisher to choose whether or not to prosecute the person sharing content. Anyone who records a portion of a game and posts it to YouTube could potentially become the subject of legal action.

This puts the hundreds of thousands of people who enjoy recording and uploading walkthroughs, best performances, and even original machinima creations at risk. Taken to extremes, the amendment could even be used to prosecute a kid who simply wants to share something he did in a game with his friends that, for one reason or another, ends up becoming a viral hit.

Of course, most publishers see this sort of game video sharing as free publicity. Many have even gone to lengths to encourage players to share clips with their friends in closed, sanctioned systems, as seen in the millions of videos uploaded within Microsoft's vast Halo community.

But what happens if a publisher finds an unflattering clip posted on YouTube? One that, say, exposes purposefully inaccessible content (like the notorious Hot Coffee mod in Grand Theft Auto: San Andreas)? Publishers could indirectly use the fear of a prison sentence to dissuade players from even sharing a video like this in the first place.

I can't help but think it would be a shame if, for fear of legal action, someone like NotEntirelySure-the YouTube user who posted the amazing Super Mario Bros. low score run so many readers of this blog enjoyed earlier this week-decided not to share his achievement for fear of legal action.

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About the Author
Game and Gadget Reporter

Chad Sapieha has been writing about video games and consumer gadgets for the Globe and Mail since 2003. His work has been published in magazines, newspapers, and Web sites across North America, and he has appeared as an expert on television and radio newscasts. More

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