Why Justin Bieber Won't Go To Jail For Posting Songs On YouTube (Analysis)

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The potential spectacle of Justin Bieber being extradited from Canada to the United States to serve five years in prison has become a new flashpoint in a debate over whether copyright law should be amended. What are the chances the teen heartthrob could end up behind bars?

Congress is currently weighing new legislation (S. 978) that would make unauthorized web streaming of copyrighted work a felony punishable by up to five years in prison. The bill, supported by many in the entertainment industry, was introduced last May but started to gather widespread attention this past week after after a non-profit organization, Fight for the Future, launched a website and campaign entitled "Free Bieber."

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Fight for the Future points out that Bieber became famous as a result of posting supposedly unauthorized covers of popular R&B songs to YouTube, such as the following video where Bieber does his version of a Chris Brown song. 

Tiffiniy Cheng, director of Fight for the Future, says the problem with the proposed legislation is that "since copyright law is so expansive, it applies to lots of completely harmless and common things: like singing a song, dancing to background music, or posting a video of a kids’ school play."

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Or Justin Bieber videos. The group believes that in videos such as the one above, Bieber may be violating the public performance rights to Chris Brown songs.

Since "Free Bieber" launched, petitions have been gathered and the press is starting to notice. One problem: Even if the bill passes, Bieber is safe from the slammer.

At Copyhype, a blog devoted to copyright issues, IP attorney Terry Hart lays out a compelling case for why Bieber isn't really threatened at all.

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A song contains distinctive underlying rights -- including rights to the original master recording, rights to release derivative versions of the composition, and rights to publicly perform the material. By addressing streaming, the bill focuses on the public performance aspect, but as Hart notes, "someone who uploads a video to YouTube is not performing the video — YouTube is."

A spokesperson for the bill's sponsor, Senator Amy Klobuchar confirms as much, telling Hillicon Valley that the bill "does not criminalize uploading videos to YouTube."

As for YouTube, the web-video company secures blanket licenses from performance rights organizations. YouTube and ASCAP haven't always seen eye-to-eye on everything, having been in court to figure out things like the proper rate to be paid and how YouTube should account for downstream uses of its broadcast content, such as when a blog embeds a YouTube video, but hardly anybody believes YouTube is on the hook for doing something like operating an illegal streaming service. 

There are other questions, including the responsibility for getting so-called "synch rights" on cover songs posted on YouTube, but nothing is stopping Bieber from being prosecuted or sued for violating copyrighted material today. That is, if he doesn't have a proper license already. And it doesn't look like YouTube has received any takedown notices on those cover song videos. Certainly, Bieber isn't sitting in a jail cell at the moment.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner