The problem, though, is that it is damn hard for a normal person to defend themselves. The safe harbor is an affirmative defense, which means you have to understand and argue it--that costs money.
Yes.
But it costs the IP holder money to file the claim as well. And there is the fact that the "minion lawyer" (mentioned below) draws an annual income from the company if he is an employee or on retainer- meaning he gets paid whether he wins a dozen lawsuits or never even sends a C&D letter.
Protecting IP is NOT cheap.
And lets not forget, not every IP holder is a big company. A lot is held by individuals (like me, actually- music, sculptures, paintings, commercial designs and a book in progress). And its no cheaper for an individual to protect his IP than it is for a big company. Actually, it is probably more expensive on a case by case basis. (Ask Ani DiFranco how much it costs her to protect her own private record label from pirates.)
With Bill S978, the penalties go beyond cash and become felonies. Felonies. All the copyright owner (or, with S978, the government) has to do is tell a minion lawyer to file a complaint and the alleged infringer is now tied up for months defending themselves. Who is going to ever take on that risk to review a product?
Lots of people do and will continue to do so. Most of them will have some kind of legitimate point. Most persons citing a Constitutional safe harbor legitimately- IOW, not just trying to justify their actions, but genuinely engaging in protected forms like a review or satire- win.
Now here's the thing: if your defense is legit, and found to be so, you can actually get court costs. IOW, if your use of someone else's IP is deemed to be Constitutionally protected, your court costs & legal fees get paid by the other side. Its a double edged sword, though. If the Court thinks your use was NOT protected, and that the assertions in your defense were frivolous (IOW, the Court thinks you wasted their time because you knew you were wrong and didn't settle out of court), YOU can be ordered to pay the court costs & fees of the IP holder. That is on top of the penalties the Court finds justified.
Still, the Gov't is not going to pursue people on its own motion unless it is after people infringing on its own IP. The IP holder HAS to be involved.
Let's Plays are videos of full playthroughs of a game from beginning to end. It's generally not truncated and shows the entire game completely.
Well, that kind of Let's Play would genuinely be in trouble. Its already illegal as is: it is a reviewer's Constitutional right to post
part of a reviewed piece, but not the whole thing.
What people still don't understand is that violation of Copyright law already can be a criminal offense under:
Title 17 Chapter 5 §506
1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —
<snip>
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
(A criminal action under this section has to be initiated within 5 years of the offending act.)
The new bill just ups the penalty, and not by much:
United States Code: Title 18,2319. Criminal infringement of a copyright | LII / Legal Information Institute
So here's the takeaway: Odds are pretty good that the computer game companies are not going to do a damn thing about Let's Plays just because of this new bill. The reason is that they aren't doing anything about them right now under current law, which only differs from the proposed bill in severity of punishment.
And does Blizzard really care if you go to jail for 3 years (current law) or 5 years (proposed law)? I don't think so. If they DID care, they'd go after you NOW, then get you again for another offense and get you for 6-10 years (current law) as a repeat offender.