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Piracy and Copyright: Two Steps Forward and One Step Back

Piracy and Copyright: Two Steps Forward and One Step Back

On January 18, 2012, two dramatic shifts were seen in the copyright world. Thousands of websites, including Wikipedia, Google, and Boing Boing, went dark in protest of two proposed pieces of legislation - SOPA (Stop Online Privacy Act), and PIPA (Protect IP Act). On the same day, the Supreme Court upheld Congress's right to move foreign materials previously in the public domain back under copyright protection.

SOPA's goal is "To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes"[1] and PIPA's goal is, "To prevent online threats to economic creativity and theft of intellectual property, and for other purposes."[2] No one denies these are worthy goals, but the effect would be to hold website operators responsible for any linking to pirated work that may exist on foreign sites accessed through their services. In other words, "The proposed bill's text says that a site could be deemed a SOPA scofflaw if it "facilitates" copyright infringement. That very broad language has tech companies spooked."[3]

In Golan v. Holder, Attorney General[4] , the Supreme Court ruled in favor of a 1994 law that moved foreign works that had previously been in the public domain back under copyright protection. This was done in order to comply with "the Uruguay Round Agreements Act, a treaty seeking to equalize copyright protection on an international basis."[5] Up until then, musicians, filmmakers, and others had been able to use certain foreign works without seeking permission or paying any cost. Golan's position was backed by Google, many librarians, and others, who worried that removing works from the public domain set a bad precedent and discouraged the spread of knowledge.

Both of these events affect rights holders, users, and content distributors. The motion picture and music industries had argued that more laws were necessary for the protection of their content. They have been mostly successful in their attempts to impose tighter and longer restrictions via legislation. The growth of the Internet and the easy sharing of digital materials has made keeping up with piracy a very difficult thing. File sharing sites such as Napster and PirateBay seemed to encourage users to illegally share and access copyrighted content.

But opponents of tighter restrictions argue that rights holders have not innovated enough or found business models that provide online access to content at a reasonable price and with relative ease. They point to the success of Apple's iTunes as a distribution center for copyrighted content for which users are willing to pay.

Complicating the issue is how content gets distributed around the world. Many pirates set up shop in foreign countries where they need not worry about U.S. laws. Content pours into and out of their sites. It is very difficult to know just where the content is coming from so users may link to content that infringes without being aware of it.

Opponents of SOPA/PIPA agree that legislation is needed, but as written, the burden of proof is put on the accused - along with the legal costs - and unduly favors a copyright owner's rights. They contend these are flawed bills that would lead to greater harm than good.

In the end, the massive effort on the part of internet companies and the public paid off. The chart below illustrates how Congress shifted in their support for SOPA/PIPA after the online demonstrations.

Members of Congress's Positions on SOPA/PIPA

On January 20, both bills were postponed or delayed and Chris Dodd, president of the Motion Picture Association of America (MPAA), "conceded that it was time for both sides of the issue -- e.g. Hollywood and Silicon Valley -- to meet to iron out their differences."[6] There is no doubt this issue will be revisited -- alternative legislation has already been introduced -- but the backers of these bills now face a more enlightened and activist public who, along with the service and content providers, are not willing to give up their current freedoms so easily.

And the other battle? There are no more courts to argue in front of, so the content previously more widely available remains locked down. For some, this is a worrisome outcome. "If Congress is free to restore material from the public domain at will," the petition for review argued, "then the public's federal right to copy and to use public domain material this Court has recognized may evaporate at any time."[7]

What does this mean for CLA? Perhaps the greatest lesson learned is that we have to become aware, stay involved, and advocate for legislation that will preserve our rights. We count on having access to just about any content we need for our teaching and research purposes. The Fair Use provision of Copyright Law allows us to use many of these materials without seeking permission or offering payment, but it is not a completely safe harbor. The MPAA and the Recording Industry Association of America (RIAA) and other content producers have lawyers and lobbyists who are well positioned to protect their interests. Google, Facebook, and other content providers may be on our side for some fights, but they are working to protect their bottom lines as well. Content users in the University community, and the public at large, need to understand how in flux all this is. Laws are constantly being written that may affect our access to material. We have tremendous power, but if we assume others will protect us we may end up losing more than we can afford.

If you'd like to learn more about copyright at the University, the Libraries are a wonderful resource. If you are a content producer and would like to protect but also share your materials, Creative Commons offers templates and advice on how to do so. Contact the Digital Content Library staff at for other digital media related questions.

January 30th, 2012

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