UWM: Technology, Copyright Law Pose New Challenges for Information Sharing

MILWAUKEE – The Supreme Court is poised to take action on a significant case involving “secondary” liability for copyright infringement.

MGM v. Grokster may prove a landmark case in efforts to balance the rights of copyright holders with the rights to use innovative technologies to share information, says Tomas Lipinski, co-director of the University of Wisconsin-Milwaukee’s Center for Information Policy Research.

“It is probably the most significant case in this area since Napster,” says Lipinski, who is also an associate professor of information studies at UWM, a lawyer and author of a number of books on the legal issues posed by new information technologies.

At issue in MGM v. Grokster is whether a company that has developed a “peer-to-peer” file sharing technology that allows users to share movie and music files is liable for copyright violations committed by those users. “Like the VCR, it can be put to legal or illegal use,” says Lipinski. While Congress and the courts didn’t prohibit sales of VCRs because of potential illegal use, with the Grokster case they will want to find a balance that allows new technological innovation while protecting the rights of artists and authors.

The case is symptomatic of a trend toward increasing the copyright protection responsibilities of second parties, including libraries and universities, says Lipinski. He recently completed a book, “The Librarian’s Copyright Liability Handbook,” on the legal implications of the Digital Millennium Copyright Act (DMCA) passed by Congress in 1998. The book will be one of the first to take a look at the legal implications of the DMCA, says Lipinski. With DMCA, Congress rewrote portions of copyright law to deal with issues raised by new digital technologies. The book is planned for publication later this year.

Provisions of the new law will require librarians to take a much more active role in preventing copyright violations. “It will no longer be enough to post a copyright notice by the copying machine. They will have to jump through a number of hoops to protect themselves” from legal action, he says.

Lipinski also recently published “Copyright Law and the Distance Education Classroom,” which deals with copyright issues faced by educational institutions setting up distance education programs.

“The whole area is a very hot topic right now,” says Lipinski.

In rewriting the copyright law, Congress made it more complex, he notes. While the law clarified some issues and made it easier to use some material, it also requires libraries and universities to take a much more active role in protecting the rights of authors and performers by better educating the public and setting up technological protections.

“The law essentially takes libraries from being passive intermediaries to active participants in the warfare between copyright owners and pirates,” says Lipinski. The law may also affect universities and other public institutions that allow students and others to access the internet, says Lipinski, increasing their exposure to potential liability if they don’t take steps to prevent their systems and computers from being used for illegal file sharing.

The next wave of litigation on digital and copyright issues may involve universities who use electronic library reserves to provide online “course packs” of assigned materials for students. Copyright holders are arguing that they should be paid a fee or royalty for such use of materials, while some libraries feel the substantial subscription costs they pay for professional journals should cover such electronic sharing.

Other legal issues arise when professors use movies, documentaries or other digital materials in class or in distance education courses. Under the fair use doctrine, they could show a segment of the movie, but under the new law they might be liable for a copyright violation if they show the entire movie, says Lipinski.

“The best outcome would be for universities and publishers to work out agreement without going to litigation or back to Congress for more re-writing of the law,” says Lipinski.

Lipinski’s book, “The Librarian’s Copyright Liability Handbook,” is the first in a proposed series on issues like privacy and the Patriot Act, online libraries and free speech. The book includes a question/answer section as well as sample language for copyright notice postings.

As both a lawyer and librarian, says Lipinski, “my goal is to provide practical tools as well as scholarly research.” One of Lipinski’s earlier books looked at legal issues librarians faced because of the Patriot Act, and he is interested to see what will happen when that Act is up for reauthorization.

Says Lipinski: “The whole area continues to be a really exciting area for research.”