Late April saw a major reversal in what had been a long-running trend. Piracy on the high seas–not including the latest “Pirates of the Caribbean” movie–may be back on the rise after years of decline. Although recent attacks marked the first major assaults on merchant ships in nearly five years, the location of the hijackings, near the Horn of Africa, was normal. However, there has also been a rise in the number of attacks on the West Coast of Africa as well. This all comes despite major efforts following a recent peak in piracy attacks in 2008-2011. Read on to find out why these attacks are happening again and if this latest wave of pirate attacks is the beginning of a new trend or just an isolated spike.

A Brief History of Piracy

Trying to trace the history of piracy is similar to trying to trace the history of other crimes like theft or murder in that there really is no identifiable start date. Nevertheless, most estimates place the beginning of the practice sometime between 1400 and 1200 B.C. near the southeastern coast of present-day Turkey. The practice continued throughout the years, involving every Mediterranean empire and many important historical figures including Julius Caesar.

Piracy was a major tool used by the Vikings and later by the English, most notably when the Queen of England commissioned Francis Drake to attack Spanish ships during a war. The United States had its first brush with pirates in the early 19th century when Barbary Pirates from North Africa attacked its shipments and demanded tribute, which ultimately led President Thomas Jefferson to send the navy to fight back. While the frequency of piracy decreased after that, it was never eliminated outright–it mostly just shifted regions, first to Southeast Asia and ultimately to what is now Somalia.

Somali Pirates

Piracy near the Horn of Africa clearly has a long history for a number of reasons. Recently, its surge has been the result of many factors, notably the region’s significant population growth and failing economy, which is the legacy of various colonial governments cutting up Somalia into disparate parts. Additionally, many of the pirates themselves–who are generally men between 20 and 35 years old–have few employment opportunities and view piracy as lucrative means of employment. In fact, piracy has actually led to the development of many other symbiotic industries such as communications, mechanics, and food production. Pirate crews are often formed along clan lines and some believe that an important part of the reason why piracy is so prevalent in Somalia is due to the amount of illegal fishing in Somali waters. Illegal fishing has significantly depleted the resources available and is likely part of the reason why the local economy does not offer enough opportunity to young men, which forces many to seek alternative means of making money.

The video below looks at piracy in Somalia and some of its underlying factors:

Regardless of the specific reason, piracy exploded in this region and peaked from 2008 through 2011. During this time, more than 700 merchant vessels were besieged. At one point in 2011, as many as 758 individuals were being held for ransom and the costs to the shipping industry were estimated to be higher than $7 billion. Piracy became such an issue during this period that one high-profile incident even became the subject of the blockbuster movie “Captain Phillips.”  But in 2012 this trend slowed dramatically and there were no major hijackings until earlier this year.

Efforts to Fight Piracy

Although it seemed as if piracy in the area around the Horn of Africa just vanished, it was actually the result of several factors. These efforts started by land (and sea) with U.S. airstrikes and efforts by Kenyan security forces that pushed Al-Shabaab (Somalia’s Al-Qaeda offshoot) out of key areas, including the port of Kismayo. These actions along with efforts by local clans, which were irritated at the flashiness of the pirates, brought back some stability to the region.

The greatest effort, though, came from Task Force 151. As part of the U.S.-led force, NATO and the European Union sent ships to the area to protect merchant ships. This effort was joined separately by navy vessels from Russia, China, and India. The primary contribution made by these ships was deterrence, however, they did also attack coastal storage areas and capture pirates to bring in for trial. The coalition also shared vast quantities of information with merchant ships that proved very useful.

The merchant vessel operators themselves also contributed to the reduction in piracy through several actions of their own. According to Foreign Policy, those efforts include, “cruising at higher speeds, installed barbed wire on the lower decks, built ‘citadel’ safe rooms for crews, and toyed with foam machines, high-power water jets, and deafening sonic devices.” Notably, many also employed security teams, which usually consisted of people with military experience.

While it certainly seems like there was a reduction in piracy over the last few years, thanks to a variety of efforts, this may be somewhat misleading. Although Somali pirates generally refrained from attacking high-profile international targets since 2012, there have still been numerous attacks on smaller local fishing boats. In addition, some suspect that several attacks went unreported, suggesting the problem never really went away, but that rather it changed forms.

Latest Developments

Regardless of what happened during that period, piracy is unquestionably an issue in 2017. For the first time in years, a major hijacking occurred off the coast of Somalia when pirates captured the Aris-13 in March. Somali pirates also hijacked an Indian commercial ship in April. Last year marked the first time since 2010 that the costs associated with piracy have gone up, reaching an estimated $1.7 billion. The reason for this spike has been attributed to several causes. One is declining vigilance on the part of shipping companies–the Aris-13, for example, did not have private security on board and was also cruising in dangerous conditions. Aside from the shipping companies, the spike has also been attributed to famine and drought in the area along with the continued lack of stable government and law enforcement in Somalia.

At the same time, piracy is also increasing on the coast of West Africa. Namely, pirate attacks off West Africa nearly doubled in 2016, according to a report from Oceans Beyond Piracy, an anti-piracy NGO. Most of these attacks have occurred off the coast of Nigeria and have focused on attacking the country’s oil infrastructure. The attacks from Nigeria stem primarily from the country’s criminal gangs. The tactics employed by West African pirates differs, however, from their Somali counterparts. While Somali pirates tend to target large ships, West African pirates seek out the crew then go into hiding until they receive ransom payments. Part of this has to do with the nature of the local government. Nigeria, unlike Somali, has a functioning government and military, which makes seizing large ships more difficult. The presence of a functioning state apparatus has also made the need for an international coalition, like the one in Somalia, less necessary.

Conclusion

Piracy is one of those concepts, similar to terrorism, where it often seems as if the international community is pursuing the incorrect, reactive approach. Namely, instead of taking a step back and asking why people engage in piracy, we try to target individual pirate leaders in the hope that defeating them will end the scourge. In other words, we treat the symptoms instead of looking at the underlying cause.

When rates of piracy went down, the international community pointed to increased vigilance and became complacent. With the threat seemingly neutralized, protection decreased and ships started employing fewer armed guards. Unsurprisingly, piracy returned and now the community must grapple with the same problems again. If the world at large hopes to be more successful this time, it must understand the history behind this practice, and more importantly, this divided region. Above all else, though, greater emphasis will need to be placed on the cause, or at least offer an alternative, rather than simply trying to kill a few leaders and assuming that will solve the problem.

If the U.S. and its global partners really want to end piracy they need to establish a secure and functioning state in Somalia and address the food problem there. In West Africa, there is less to do since there is a functional government in place and pirates rarely try to seize entire boats, instead focusing on ransom payments for individuals. In that scenario, however, the government may need to look into addressing the inequality caused by mineral wealth that has left certain groups wanting. There is no one universal approach, other than working to target the reason why piracy exists instead of just reacting when piracy occurs.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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An unnamed Valparaiso University student was arrested in a Rosemont, Illinois Muvico theater by police officers acting on a tip from over 8,000 miles away. His crime? Illegally sharing copyrighted content online via Facebook Live.

The student was watching a local premiere of the Bollywood romantic comedy film “A Aa,” and was allegedly using his cellphone to record and stream video of the screen live to his Facebook friends.

Facebook’s Live feature is relatively new to the platform, and allows users to stream live video of themselves and their surroundings to their Facebook friends, or the general public. After the live stream is finished, the video is saved on your Facebook account. These videos can be made public, and in that case, could be viewed by millions. One live video in particular–an über-viral clip of a Texas mom trying on a Chewbacca mask–garnered over 150 million views. It’s clear that a Facebook Live video can attract a large audience under the right circumstances, and isn’t just a moment shared between friends.

The content was flagged by an anti-piracy team working for the studio Bluesky Cinemas in Hyderabad, India. The team managed to remove the posting, and contacted the Muvico theater where the screening was taking place. Theater management then contacted the police, and soon after the student was arrested at the theater. When police arrived, they deleted the video from the student’s phone–Facebook Live has an option to save the video you’re recording to your camera roll. Only a few minutes had been recorded by that point.

Someone illegally distributing copyrighted material online can be liable for both civil and criminal offenses, and police involvement isn’t a completely unprecedented intervention. While it seems like an overreach of power to arrest someone for using their phone at a movie theater, officials insist that they prevented an incident of real cybercrime. An arrest like this raises the question of whether our anti-piracy laws are effective, or simply impossible to reasonably enforce.

Sean Simon

Sean Simon is an Editorial News Senior Fellow at Law Street, and a senior at The George Washington University, studying Communications and Psychology. In his spare time, he loves exploring D.C. restaurants, solving crossword puzzles, and watching sad foreign films. Contact Sean at SSimon@LawStreetMedia.com.

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To no one’s surprise, “Star Wars: The Force Awakens” broke box office records around the country and around the world over the weekend. As perhaps the most anticipated film of the year, its release has dominated both print and online media. Some websites are treading very carefully, aiming not to spoil any content for readers who have not yet seen the film. It’s an admirable goal–but what’s the legal side of the spoiler debate?

In an interview with Buzzfeed UK, Harrison Ford asked moviegoers not to ruin the film for others, but it is difficult for websites to avoid publishing content on a film that is dominating online discussions. During a week when the question on everyone’s lips is not if you will be seeing “Star Wars,” but when–what else would entertainment bloggers be writing about?

For a film that has already made profits off of its opening weekend, spoilers are not a threat to commercial success. Yet for films with smaller budgets, the exposition of a plot could be a financial death sentence. Why go see the film if its summary is available online? Websites like Wikipedia and IMDB often post plot summaries of films quickly after they are released, and many entertainment websites post articles about films before they are released in theaters that discuss major plot points under the heading “spoiler alert.”

I personally would not want to pay admission for a film I already knew the plot of. In an era where films are freely available for illegal download or are released directly to a streaming service, fewer young people set time and money aside to go to the movie theater. When the plot of a major film is revealed online, paying admission price seems foolish. A film such as “Star Wars,” with plenty of die hard fans who are so loyal to the franchise that they prefer to see it in theaters, has no trouble breaking even, but films with smaller budgets and a less-publicized release may not attract such dedicated viewers. That being said, film studios have not launched legal action against bloggers who reveal the plot of their films in the same way they do against people who illegally film or download their films. Five separate Hollywood studios have filed for damages against Megaupload founder Kim Dotcom, who is currently facing extradition to the United States, but no studio has brought a case against an online platform for “spoilers.”

Spoilers present an interesting copyright issue for web sources. Filming a scene from a movie in the theater and uploading it would be considered piracy (and could be removed from a content sharing website by the host), but can a written description of the scene be treated the same way? What is the line between writing a review and revealing a pivotal plot point? There is no set rule for when a film’s plot is considered part of the public domain, or when a spoiler becomes common knowledge. How can copyright law ever regulate written descriptions of a film if there is no clear limit on how much a writer is allowed to reveal?

Piracy has a flexible definition that is constantly adapting and expanding as the worldwide web incorporates more forms of media, but I doubt it will ever encompass movie reviews. At the end of the day, movie reviewers are tasked with describing a film and it is perfectly within their rights to do so in as much detail as they want. Hordes of Star Wars fans may have cut themselves off from their favorite websites to avoid spoilers this week, but that hasn’t made a significant dent in internet traffic on major entertainment websites. Spoilers are inconvenient and frustrating, but they are ultimately an inescapable part of internet culture, embedded in the Web, and probably won’t face any legal action anytime soon.

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

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YouTube is a form of media that’s in many ways built on creativity–from reaction videos to remixes to fan tributes, YouTube is  home to many adaptions of other works. But whether or not those types of videos are legal has long been a hot topic of debate. YouTube itself is now getting involved and backing the principles of Fair Use, which protect adaptions, by offering legal and financial support to some content creators who have been targeted by particularly predatory takedown notices.

Fair Use is the legal doctrine that allows the use of copyrighted material in certain circumstances. As defined by YouTube it includes uses like criticism, commentary, educational purposes, or news reporting. YouTube also lays out other factors that usually go into deciding whether or not something can legally be deemed Fair Use–pointing out, for example, that the use of shorter clips tend to be decided as Fair Use more often than longer clips. Additionally YouTube explains how to determine if a use is “transformative,” usually a big sticking point for courts asked to decide Fair Use questions, stating:

Courts typically focus on whether the use is ‘transformative.’ That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

Despite the fact that this is all a fairly normal and accepted definition of Fair Use (although instances are usually decided on a case-by-case basis) some YouTube users are continually subject to copyright infringement claims under the Digital Millennium Copyright Act (DMCA). While that act was originally created to prevent piracy, it has been used in abusive fashion in some cases. The process for DCMA-based takedowns has become automated, making it harder for content creators who are affected to fight them.

So, YouTube has decided to pay some legal bills and offer legal support up to $1 million in instances where there are “clear fair uses which have been subject to DMCA takedowns.” For example, YouTube will provide support to the Ohio Chapter of Naral Pro-choice, a pro-choice advocacy organization. They were given takedown notices after using a clip of a committee meeting in a video criticizing local law makers in a video posted to YouTube. Another example of a type of video that YouTube will help to protect is a series made by Constantine Guiliotis, who debunks instances of UFO-sightings. While he uses others’ clips, he does so in a way that should be considered Fair Use.

YouTube explained its motivation for helping those who have been targeted by the takedown notices. YouTube’s Copyright Legal Director, Fred von Lohmann, stated: “we’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.”

Fair Use certainly is a tricky gray area–and there are certainly many cases in which copyrights need to be protected and plagiarism and piracy run rampant. However, abusing the DMCA also isn’t the answer. By aiding those who deserve it, YouTube draws a fair line between potential abuse on both sides.

Read more: Fair Use: Is it Really Fair?

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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On Tuesday, two important things happened in regards to internet piracy. First, a Swedish police raid on a computer server room in the Stockholm area shut down the Pirate Bay, one of the most popular websites for filesharing.

Second, in the immediate aftermath, millions of people were scratching their heads, probably looking for some other way to watch their favorite TV shows and movies for free.

Prosecutor Frederik Ingbland confirmed to Swedish media that the raid was targeting the Pirate Bay. After its founding in 2003, the site became infamous as a venue for millions of Internet users to download music, movies, TV shows, and other pirated media using torrents, a peer-to-peer exchange system. While it isn’t clear exactly how many people were using it at its height, by 2013, the Pirate Bay had become the most popular filesharing website.

This is far from the first time the site has run into the law. In 2009, four of its founders were convicted in a Swedish court of contributing to copyright infringement. They were sentenced to a year in prison and fined $3.6 million to be paid to an array of entertainment media companies such as Sony BMG, Universal Music, EMI, and Warner Brothers. A year later, following a failed appeal, those sentences were reduced by a few months and the fines increased to about $7 million.

The reduced sentences apparently weren’t good enough for two of the convicted founders because, shortly after, Fredrik Neij and Gottfrid Warg suddenly appeared in Southeast Asia, according to the Washington Post. Warg was arrested in Cambodia in September 2012 and this time was given three and a half years by the Swedish courts. Neij was arrested last month crossing the border from Laos to Thailand.

Back then, despite legal trouble and international hide-and-seek, the website was still up and its users were torrenting away. Now, it seems that the Pirate Bay could be down and out, but the ideas it promoted are not. It might sound weird to say that a media pirating website promoted any sort of meaningful ideas, but the Pirate Bay did change the way media consumers view media–in both a literal and conceptual sense. As the Washington Post’s Caitlin Dewey explains, “See, the Pirate Bay is as much an idea and an orientation to entertainment media as it is/was a torrent-tracking site. … It’s made digital piracy a casual, inarguable part of the mainstream.”

The Pirate Bay may have been the most popular way to illegally enjoy your favorite movies, music, and TV shows, but it wasn’t the first site to do this and it definitely isn’t the only one now. The point is there are a ton of people who regularly download pirated media with no remorse. Data from TorrentFreak, a blog about filesharing-related issues, shows that in 2013 more people illegally downloaded HBO’s Game of Thrones than the number of people who actually watched it on TV.

There isn’t any indication that this sort of thing is going to stop soon. The Pirate Bay’s shutdown doesn’t seem be changing that. Co-founder Peter Sunde, who actually did spend time in prison and was released in November, wrote that he was actually glad the site was taken down, calling it “ugly, full of bugs, old code and old design.”

In retrospect, it seems that the main goal of the Pirate Bay was to popularize torrenting as a way to get media. Since that is already the case, people like Sunde are now indifferent about the shutdown. “From the immense void that will now fill up the fiber cables all over the world, I’m pretty sure the next thing will pan out,” he wrote.

Zaid Shoorbajee

Zaid Shoorbajee is a an undergraduate student at The George Washington University majoring in journalism and economics. He is from the Washington, D.C. area and likes reading and writing about international affairs, politics, business and technology (especially when they intersect). Contact Zaid at staff@LawStreetMedia.com.

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Taylor Swift made waves this week when she pulled all of her music from the popular streaming site Spotify. The 24-year-old singer-songwriter’s newest album, “1989,” was never put on the site, and her older music can no longer be found there.

Spotify is a music streaming site that was launched in the United Kingdom in 2008, and has been in the United States since 2011. It is able to stream music so effectively because of deals it has worked out with various record labels. Labels and artists are compensated for Spotify’s use, although to be fair probably not as much as they would if they had actually sold the songs or albums; however, as Spotify explains it, there is tangible benefit for the artists. Spotify provides a service that’s convenient, relatively cost-effective, and easy to use. It hopes to divert those who would otherwise pirate or get songs illegally. In Spotify’s eyes, artists are better joining up with them and making a little money than not making anything because of piracy. Spotify explains its success:

Spotify has already made considerable progress towards restoring the value lost to piracy and other less well monetized forms of music consumption. As of March 2013, Spotify had over 24 million global users. 18 million of them were using our free tier, wherein listeners pay for their consumption by viewing and listening to advertisements. At that time, as well, more than 6 million users were paying a $9.99 / £9.99 / €9.99 monthly subscription to use Spotify’s Premium tier.

However, if an artist or its label does not want to have music on Spotify, they can take their music down. T-Swift is by no means the first artist to do so, and others simply never allowed their music on the site in the first place. The Black Keys, Beyonce, and Radiohead are all good examples of other popular artists whose music is not available to stream through Spotify. The argument is that services like this are predatory and take advantage of artists. Swift has long been against services like what Spotify offers. In a Wall Street Journal op-ed this summer, she wrote:

Piracy, file sharing and streaming have shrunk the numbers of paid album sales drastically, and every artist has handled this blow differently. Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is.

To its credit, Spotify has handled this marvelously. It’s capitalized on Swift’s retreat from the site by using it as a social media marketing opportunity. The music streaming site tweeted at the singer with a pretty creative message:

We love @taylorswift13 as much as you do. Here's a message we hope brings her back http://t.co/yRm5bfNV23 #justsayyes pic.twitter.com/1lj2JB1SMI

— Spotify (@Spotify) November 3, 2014

It also got some fun and creative use out of one of T-Swift’s more famous songs, again on Twitter:

We were young when we first saw you but now there’s 40MM who say stay, stay, stay. It’s a love story baby #justsayyes pic.twitter.com/n6tHkG8GCq

— Spotify (@Spotify) November 3, 2014

Spotify’s actions on Twitter really kind of sum up what this debate is all about–the Internet has changed how we do all of this. From how we listen to music, to how we respond to scandals, to how we are able to interact with the public, technology has completely radicalized all of it. T-Swift and other artists’ dedication to their art is admirable, to be sure, but is it really the smartest course of action? Spotify, and all other streaming services, are on to something here. There will always be ways to find this stuff illegally; you’re better off getting people to pay a little for it than nothing at all.

Now, T-Swift is rich enough and has good enough brand recognition that my guess is that this is more of a political statement than a financial decision. It’s a decision that she can afford to make, but I don’t know that it will create any real change in the industry. While it’s a shame that the music industry is no longer what it once was, I highly doubt that it will end up going backward and we’ll all revert to purchasing music. T-Swift may just do better shaking it all off and going back to Spotify.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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In the age of the internet, phones with cameras, and digital picture-taking, it’s become much easier to “steal” artistic property. Both the United States and the international community try their best to prevent the theft of artistic and intellectual material through copyright laws. In addition to regular copyright laws, there also exists something called “moral copyright.” Moral rights are artists’ rights to protect the integrity and ownership of their copyrighted works. They include the right of attribution, the right to have the work published anonymously or pseudonymously, and the right to the integrity of the work.  Preserving the integrity of the work creates limitations upon the rights of others to distort the work, alter it, or do anything that attenuates the artist’s relationship with the work.

Read on to find out how both artists’ copyright and moral copyrights are protected by law, the effectiveness of the laws, and the arguments for and against the different laws in place to protect artists’ rights.

U.S. Copyright Law

The stated purpose of U.S. Copyright law is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law protects many forms of artistic works including literary, musical, dramatic, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audiovisual works, sound recordings, derivative works, compilations and architectural works. Even though the realm of works protected is wide, there are differing levels of protection that apply for some of these works.  For example, sound recordings are protected in a different manner than written documents are.

Copyright law protects the author’s manner of expressing the idea but it does not protect the idea itself.  This means that copyright-protected works of authorship can still be plagiarized under the law. For example, a paper that describes a scientific theory may be protected from reproduction or distribution, but someone else can restate the theory with a different manner of expression and circumvent the original creator’s copyright protection.

Copyright protection ensures that the protection of the work lasts longer than the person who created it. Current law mandates that an individual person’s copyrighted works are protected for the duration of his or her life, plus 70 years afterward. For works created by multiple authors, the length of the protection is based on the life of the last surviving author. If a work is made for hire, an anonymous and pseudonymous works (where the author’s identity is not in Copyright Office records), the duration of protection will be ninety-five years from publication or one hundred and twenty years from creation, whichever is shorter. This makes it less likely that an author’s work will fade into the public domain before he or she has a chance to reap its full commercial value. This also serves as somewhat of a safeguard to an author’s legacy after he or she has passed on.

Copyright protection does not exist for articles that have a “useful function.”  For example, an artist’s drawing of a train would be protected by copyright, also the creation of a 3D model of the train would be actionable. However, creating an actual, working version of the depicted train would not be actionable under copyright law. Some creators’ work have both useful and non-useful, aesthetic attributes. Copyright law protects the aesthetic attributes but not the useful ones. If the aesthetic attributes cannot be separated from the useful ones, then the owner does not receive federal copyright protection. This means that owners can potentially lose copyright protection because their creation has applications that are useful to society.

Why do proponents argue in favor of current American copyright laws?

Proponents of the adequacy of U.S. copyright law argue that the duration of the rights gives authors time to effectively profit from their work without fear of having their labors stolen. The law properly makes exceptions for certain socially valuable non-commercial uses of copyrighted material by providing such users with Fair Use as a defense to an infringement claim. This allows copyrighted works to be used for socially beneficial purposes before the expiration of protection without infringing on the author’s commercial or economic interests. The substantiality requirement prevents frivolous uses of copyright protection e.g. for single words.

Why do opponents argue against current American copyright laws?

Opponents of the adequacy of U.S. Copyright protection argue that the exceptions are too broad and too easy to invoke. In certain situations, alleged infringers can cause significant economic damage to a creator’s interests and still be protected by a defense granted by copyright law. Copyright protection only protects the author’s manner of expression, not his ideas.  Ideas can often still be plagiarized without giving rise to a copyright infringement claim. Also, useful articles that don’t qualify for patent protection still don’t get copyright protection. Since patent protection is more difficult to obtain and has a shorter duration than copyright protection, some authors are disadvantaged by the usefulness of their work, which is contrary to the purpose of the Copyright Clause of the Constitution. Finally, if content is too minimal then copyright law does not protect it.

Moral Copyright Laws in the United States

U.S. Copyright law does not recognize moral rights beyond the extent to which they are recognized by the Berne Convention, of which the U.S. is a member.

The rationale for the lack of additional moral rights protections in federal law is that Congress believed that they were unnecessary because other areas of law are sufficient to protect artists’ interests. U.S. copyright law, governed by the Copyright Act of 1976, already grants artists the exclusive right to create derivative works. Defamation laws, unfair competition laws and trademark laws governed by the Lanham Act grant artists sufficient civil claims against entities who intentionally or recklessly mislead the public about an author’s work and those who attempt to profit from such conduct. Moreover, certain states have created their own moral rights laws, mitigating the need for a federal statute.

Furthermore, the Visual Artists Rights Act of 1990 (VARA) provides increased moral rights to certain types of art i.e. paintings, drawings, prints, sculptures and still photographic images that are produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. These rights include the right to claim authorship, the right to prevent the use of one’s name on any work the author did not create, and the right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation. Authors of works of “recognized stature” may prevent the grossly negligent or intentional destruction of their work. The phrase “recognized stature” has not been statutorily defined, but there is a lot of case law interpreting the same. VARA rights only apply to a limited set of works but the protections for those works are substantial. Buyers of the works must get written waivers from the copyright owners if they wish to employ any VARA rights. If the rights are not waived then the author or last surviving author of a joint work generally retains them for life.

What are the arguments for keeping the moral copyright laws as they are? 

Proponents of the sufficiency of U.S. moral rights law argue that VARA grants vast protection to artists. VARA rights generally last for life and they can only be extinguished by signed, written waivers. They are secure enough to ensure that artists have recourse to act when owners of individual instantiations of their work infringe their creative rights. Furthermore, even when VARA rights don’t vest in an artist’s work, he or she can still utilize copyright, defamation, unfair Competition laws, or any relevant state statute, to defend moral rights of their work.

What are the arguments against keeping the moral copyright laws as they are? 

Opponents argue that there are many works that VARA does not protect. For example, VARA doesn’t apply to written works or to works made for hire. Also, since copyright law does not protect ideas, an author who is known for innovating an idea cannot utilize copyright law to protect the moral rights to that idea. Finally, state moral rights laws vary and it is difficult for an artist to know if the state he or she is located in will have jurisdiction over the alleged infringer of their Moral Rights.

Conclusion

Given that art is so subjective and so rarely indexed, it can certainly be difficult for artists to protect their work. There are many different kind of laws in place to protect artists’ copyrights, including some laws that loosely protect moral copyrights. While there are disagreements about the effects and implementations of the laws, its clear that artists’ works do need to be protected.

Resources

Primary

U.S. Congress: 17 USC 501 Infringement of Copyright

Cornell  University Law School: Visual Artists Rights Act of 1990

U.S. Congress Committee on the Judiciary: Copyright Law Revision

Additional

McClanahan Powers: Innocent Copyright Infringers: The Importance of an Adequate Copyright Notice to Defeat Them

Electronic Frontier Foundation: New Study Affirms Fewer Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0 

Copyhype: Who Benefits from Copyright?

Law and Economics Consulting Associates: Agreed Use and Fair Use: The Economic Effects of Fair Use and Other Copyright Exceptions

Harvard Law School: Moral Rights Basics

Library of Congress: Waiver of Moral Rights in Visual Artworks

Washington University in St. Louis: Economists Say Copyright and Patent Laws Are Killing Innovation; Hurting Economy

TechDirt: Yet Another Study Shows That Weaker Copyright Benefits Everyone

Buffalo Intellectual Property Law Journal: A Case of Bad Credit? The United States and the Protection of Moral Rights in Intellectual Property Law

Washington and Lee Law Review: Toward an American Moral Rights in Copyright

Boston University International Law Journal: Protecting Moral Rights in the United States and the United Kingdom

Information Today: Moral Rights for Authors and Artists

Stanford Encyclopedia of Philosophy: Intellectual Property

Brian Leiter’s Law School Reports: Protecting Philosophical Ideas With Copyright?

U.S. Copyright Office: Reproduction of Copyrighted Works by Educators and Librarians

College Art Association: Intellectual Property and the Arts

Leech Tishman: Litigation; a Counterfeit Pays

Golden Gate University Law Review: The Visual Artists Rights Act of 1990: Further Defining the Rights and Duties of Artists and Real Property Owners

vLex: VARA Rights Get a Second Life

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post U.S. Copyright Law: Enough Protection for Artists? appeared first on Law Street.

The Stop Online Piracy Act (SOPA) was a bill  proposed in Congress in 2011 that immediately made headlines because opponents argued that it was too restrictive and had the potential to hamper free speech. It did not end up passing, but the ideas and motivations behind it still remain up for debate. Read on to learn about SOPA, the legislative battles surrounding it, and where we stand now.

What was SOPA?

The provisions of the bill primarily included increased federal enforcement of copyright laws and increased government action against entities involved in copyright infringement. These provisions include allowing both the U.S. Department of Justice and private copyright holders to obtain injunctions against copyright infringement by foreign-based entities. The bill would have allowed the Justice Department to bar internet advertising networks and payment network providers from servicing infringing websites e.g. torrent websites, sites that allow streaming of copyrighted movies or TV shows, etc. SOPA also would have prevented search engines from providing links to those websites.

SOPA aimed to increase the criminal penalties infringers face under the law.  For example, the penalties for economic espionage would have been a maximum of 15-20 years imprisonment and fines up to $5 million. The bill would have increased the realm of copyright crimes to include those perpetrated by “electronic means.”  Criminal penalties would have increased for IP infringement of government information or infringement that results in harm to government personnel or interests.

SOPA also would have had major implications for IP civil jurisprudence. Private entities are given rights against infringers as well. If a private entity is damaged by infringement and wishes to exercise SOPA rights they could have sent written notification to payment agents and advertising networks connected with the alleged offending site who then have to inform them and cease service unless the alleged infringer can respond with a counter-notification, indicating that they are not infringing. The copyright holder would have been able to bring an action for injunctive relief against the infringing site’s owners if either a counter-notification was provided or payment networks continue serving the alleged infringer without a counter-notification. Applying SOPA rights to foreign sites would have required them to consent to U.S. jurisdiction to determine if they are dedicated to infringement.

What was the argument for SOPA?

Proponents of the bill believed that SOPA could have created a lot of benefits for the public. It created major difficulties for perpetrators of IP crime because it would have given private companies the means and authorization to enforce and protect their own intellectual property rights. This allowed IP crimes to be remedied more quickly and at a far lower cost to the public because it could be done without the time constraints and expense of adjudication. This would improve the economy by decreasing government spending on investigating and prosecuting IP crimes. The fear of facing civil litigation under SOPA and the strengthened criminal penalties would have created a strong disincentive for many forms of infringement. Furthermore, by hamstringing IP infringement SOPA would make the U.S. more attractive to authors and innovators and reinvigorate the economy with increased job creation.

What was the argument against SOPA?

Opponents highlighted SOPA’s drawbacks. Under the law, even when a valid counter-notification would have been sent, third-party servicers were not required to resume serving accused websites.  SOPA also insulated the third parties from all lawsuits except those initiated by the copyright holder.  Therefore, the law allowed and perhaps even incentivized companies to limit other companies’ legal and commercial rights without judicial oversight, leaving SOPA vulnerable to the objection that it violates individuals’ constitutional due process. Non-infringing companies may be damaged by having valuable business relationships taken away from them without a meaningful opportunity to be heard and without legal recourse. This is because even if a company is found to be non-infringing there is no requirement that the discontinued services be reinstated. Finally, SOPA would not have accounted for the proportionality of the alleged infringement relative to the alleged infringer’s website. For example, under SOPA if one person uploaded an allegedly infringing video on Facebook and the owner exercised his SOPA rights he could potentially bring SOPA action against Facebook in its entirety.

What happened with SOPA?

There was a lot of backlash against SOPA from high-profile and much-used websites. On a few different days websites blacked themselves out to protest SOPA. The blackouts not only called attention to the issue, but also served as a sort of warning to consumers that if they did not get involved in stopping SOPA, some of their favorite websites would be threatened. Participants included Wikipedia, WordPress, and BoingBoing. Eventually, SOPA ended up failing. There were attempts to revive it about a year later, but nothing really came of those.

SOPA is the perfect example of the disconnect between technology and the people making our laws. On paper the idea sounded good, but in practice there were significant problems with the proposed law. While the debate over copyright and technology is far from over, SOPA almost certainly is.

Resources

Primary

U.S. Constitution: Article I Section 8 of the United States Constitution

House of Representatives: H.R. 3261, the “Stop Online Piracy Act”

Additional

100gf: Why SOPA Might be the Best Thing That’s Ever Happened to the Internet

Vulture: Polone: Why I’m for SOPA, and How the Entertainment Industry Blew It

Venture Beat: Top 5 Reasons to Support SOPA

Cracked: The Only Argument on the Internet in Favor of SOPA

Washington Post: SOPA Died in 2012, But Obama Administration Wants to Revive Part of it

Mashable: Why SOPA is Dangerous

TechDirt: Supporters of SOPA/PIPA Make Arguments That Make No Sense

CDT: US Piracy Law Could Threaten Human Rights

SOPA Strike: Homepage

Christian Science Monitor: SOPA and PIPA Bills: Old Answers to 21st Century Problems

Masur Law: Summary of SOPA and PIPA

CNN: SOPA Explained: What it is and Why it Matters

NickEhrenberg: The Arguments For and Against SOPA/PIPA (and now CISPA)

PC World: SOPA Controversy Explained

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

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