Spring 2008 25EP Room 602 4:15-6:45 Mondays Outline: [Read Section 1.4] normative ethics v descriptive ethics deontology v consequentialism relativism Application of this to music and movie file sharing. Copyright law Summary from Week 1: Intellectual Property is a legitimate concept. It is well accepted by lawyers. However, lawyers also automatically understand that it's different from real or personal property. ================================================================ descriptive ethics: what do people actually do compare sociology, etc normative ethics, or PREscriptive ethics: what SHOULD we do? -- "if seven million people are stealing, they aren't stealing" -- is it ok to download music? ====================================================================== ====================================================================== Ethical theory (often inseparable from Political & Justice theories) Deontological ethics: (Deon = duty) fundamental, universal principles. Immanuel Kant [1724-1804] Kant's categorical imperative: all our principles should be Universal; that is, if it's ok for us, it must be ok for all. Choose principles based on that. (This is close to, but not the same as, the Golden Rule: "do unto others as you would have them do unto you"; outcome might be the same, but the GR doesn't have the explicit notion of universality. Kant also said that people should not be treated as means to other goals; they should be the "endpoints" of moral action. Kant also famously claimed the two principles (universal and non-means) were THE SAME. Kant is often regarded as a Moral Absolutist, a stronger position than deontology necessarily requires. WD Ross [1877-1971]: consequentialism is wrong; identified "seven duties" ============================================================= Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]: Consequentialism (Utilitarianism): the good is that which brings benefit to the people (greatest good for greatest number). "greatest happiness principle" WEigh benefits against harms. [Bentham apparently believed it was not ok to HARM a minority to benefit the majority, though this has always been an issue with Consequentialism. One approach is to weigh HARM much more heavily than BENEFIT, but what if the HARM is just to one person?] Bentham developed an entire legal code based on his theories. Bentham's version had a problem with justice: is it ok to take the factory from the owner? Mill wrote a book, _Utilitarianism_. He was much less flat-consequentialist than Bentham. Bentham thought all forms of pleasure were comparable; Mill felt some were "better" than others. ========================== Social Contract; Locke, Jean-Jacques Rousseau We make rules to move from the State of Nature to Civilization. That is, we agree to social/ethical rules due to their CONSEQUENCES, because we WANT those consequences. Law and the Social Contract Ethics and the Social Contract: Ethics are in our LONG-TERM BEST INTEREST? (Under the social contract) Problem: works better for some scenarios than others. ========================== John Rawls [1921-2002]: In negotiating the Social Contract, everyone must be placed behind the VEIL OF IGNORANCE, not knowing whether they would be strong or weak, rich or poor, healthy or sick. (This is often interpreted as "decide on society before you were born") They would then choose what world they wanted to live in. What ethical & legal rules do you want in place? [Usually thought of as a theory of justice, not ethics] ========================== More on consequentialism: * zero-sum consequentialism: one person suffers greatly, to produce a modest rise in the fortunes of everyone else Ursula LeGuin: "the ones who walk away from Omelas" SF take on a theme of William James, the "scapegoat" Look up "omelas" on Wikipedia to find James' quote on this. Aw, heck, here it is: Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? - William James * min/max consequentialism: goal is to choose actions that minimize the harm to those affected most (to minimize the worst case, ie to minimize the maximum) Example: taxes; everyone pays a share and social progress is thereby funded. * disinterested-person consequentialism To decide for or against a rule using consequentialist reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. * act consequentialism: consider consequences of each act separately * rule consequentialism: use consequences to formulate rules (generally fares better under critical analysis.) * "the ends justify the means" Famous examples: Compare justifications of lying Utilitarian: may be ok in some cases Act Util: *very* case by case: Lying to joe about the job interview: WRONG Lying to bob about his car: maybe Lying to mary about last saturday: sure! Rule Util: "Lying to friends" may be always wrong. Deontological: lying is wrong. Always. Even to save refugees from the Nazis. Kant: no moral issue is EVER decided on a case-by-case basis Compare approaches to criminal punishment Utilitarian: pragmatic; jail is for rehab Deontological: jail is for punishment Which approach do we take in current societal discourse? "Natural right to property" is more a deontological notion (though there are utilitarian notions as well) Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian) =============================================================== Some alternatives and special cases Aretaic Ethics: from greek "Arete", virtue or excellence Important thing is not duties or consequences but ones CHARACTER. If you have the right CHARACTER, you will be led to ethical action naturally. [Not mentioned in Baase] Rights Theory ============= We all have certain inalienable rights, and the goal of ethics should be to preserve these. Note that this is different from duties. Locke's "natural rights" comes from this perspective. Liberties and claim rights: Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples: right to life right to (physical) property freedom of speech Claim rights (positive rights): rest of us have to take measures to ENABLE your right. right to an attorney (compare liberty version of this) right to an education Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right. Basis for Property rights: John Locke [Baase, p 33] is copyright a PROPERTY right? "Natural" rights: special case of liberties (negative rights), like life & liberty These are fundamental obligations we have to one another. "Utilitarian" rights: rights that we grant each other for improved social function NOT necessarily the same as claim rights The Constitution places IP in the latter category. ============ Religion ======== How does religion figure into ethics? Lots of theological debate about whether even God is subject to moral law 10 commandments: very deontological Golden Rule: "do unto others as you would have them do unto you" [Matt 7:12] Closer to consequentialist than to deontological, but still different. Some people call the golden rule "reciprocity ethics" ============ Professional ethics: Law: lawyers have legal AND ethical responsibility to take their client's side! This can mean some behavior that would be pretty dicey in other circumstances. Corporations: have legal AND ethical responsibility to look after shareholders' financial interests. ============ Wrong v Harm: Not everything that is harmful is wrong. Example: business competition Not everything that is wrong is harmful: Hackers used to argue that it was ok to break into a computer system as long as you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently. ============ Law v Ethics (p 37) Laws: implement moral imperatives implement, enforce, and fund rights fund services establish conventions (eg Uniform Commercial Code) special interests ============ How do we decide what rules OTHERS should follow? (Quite unrelated to how we decide what rules we ourselves follow.) Ethical Relativism: it's up to the individual [or culture] See Baase, p 32, under Natural Rights: One approach we might follow is to let people make their own decisions Problems: * we don't really believe this murder/genocide * this *is* an absolute (non-relative) statement, and as such is self-contradictory. ====================================================================== ====================================================================== Some references illustrating "specificity" of IP: p 199: When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. p 200: five copyright rights: 1. make copies 2. produce derivative works (except parodies) includes translations 3. distribution of copies 4. performance in public 5. display to the public p 201: Nicholas Negroponte: "Copyright law will disintegrate" founder, MIT Media Lab founder, One Laptop Per Child; goal: $100 laptop Pamela Samuelson: "[no they won't]... balanced solutions will be found" Cornell Law prof writes Legally Speaking column in Comm. ACM ============================================================ Suppose we DO agree that songs are a form of property. Does that automatically mean we agree on what THEFT is? A bit of thought makes it clear that the answer is NO: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here. What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use". ================================================================== ================================================================== Music stakeholders (list from before (simplified)) "signed" musicians record companies record stores independent musicians current fans future fans Apply deontological/utilitarian analysis to music file-sharing ============================================================== Stakeholders: "signed" musicians lose "indie" musicians gain recording industry lose stores lose current fans gain future fans lose Utilitarian perspective: ======================= probably uses tradeoffs as summarized in the table above. (might or might not weight recording industry $$$ losses higher than others.) Deontological perspective probably would NOT. Deontologican perspective: universal principles: respect for others, fairness, honesty One approach: downloading is a form of theft. Another approach: "we simply do not have ownership rights to information" (Stallman, later) After all, we cannot own slaves (in the US since 1865) Kant, the Categorical Imperative, & file sharing: do I really want file sharing to be ALWAYS ok? Is free downloading a form of "using" other people? (Kant was against that) Problem with strict ownership: social progress REALLY stalls. We'll see this later with patents, but entertainment is also based on incremental responses. ====================== signed v indie musicians & all this utilitarian: which scheme is better for which type? deontological: do we owe signed musicians the right to decide distribution? do we owe indie musicians the right to an opportunity? Could we have *both*?? ====================== Why would people buy CDs? Some answers from ~2002: * consistent quality * "an official, completed object. It's satisfying" * concrete * album notes, photos * light & portable Is there ANY way nowadays in which a CD is better than the download? What happens to the notion that there was some ethical equilibrium reached based on CD's still having an advantage? Did Eisner start this by agreeing that, as free music became more prevalent, it was appropriate to cut prices on for-sale music? John Rawls & justice / ethics Imagine that you have NOT YET BEEN BORN, and you do not yet know to what station in life you will be born. Your perspective might be very different if you knew you were going to be a songwriter, versus (just) an ordinary listener. ====== Per-track pricing at iTunes: how does THIS change the model ====== Fundamental conflict: evolution of technology v rights of creators Is going back to the old way an option? ================================================================== =============================== Michael Eisner, CEO of Disney, testifying before Congress in June 2000: Theft is theft. Movies cost a lot music downloading is as bad as credit card theft Everyone has to play by infringement rules distributing a DVD is no different from stealing newspapers THEFT IS THEFT [creators are entitled to] FULL RIGHTS OF OWNERSHIP Disney believes in technology 5 rules: 1. legislative mandate for technological fixes 2. international protection 3. public education - many don't know it is wrong 4. use appropriate technological measures 5. appropriate pricing does free copying drive down prices? DISCUSSION: Do you agree with Mr Eisner? Conversly, does Disney engage in theft by overpricing DVDs? (cf Eisner's 5th rule) =================================== Napster: started June 1999 Lost in district court in 2000 Ninth Circuit appeals court examined case, granted an injunction allowing Napster to continue until the case was decided. They found that Napster *did* have Substantial Non-Infringing Uses. But they ruled against Napster in the end. Napster was ordered to remove infringing content, which they technologically simply could not do. Bottom line: Betamax was rejected because, although SNIUs existed, napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it. However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously. Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers. Did that make it ok? Napster figured the RIAA would never bother with individual lawsuits against users. Were they right? Are such suits justified? What evidence is needed for subpoena? Note that signed and indie musicians fare VERY differently under the napster model! Also note the long-term implications for "future fans" IS napster like radio? Napsterized business model for musicians: make money giving live concerts, not selling CDs. IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE? Is this a case of "harm" being unequal to "wrong"? Question: is it ethical to cause harm? What about economic harm? ============================================================= Now back to Eisner: can the FILM industry survive on the napster model? Here we get into ECONOMICS: it is pretty clear that the answer is NO. Why? What about income from movie-theater showings? Other ethics/economics questions: what is the FAIR amount of money to pay for something? Can people be EXPLOITED by receiving too low an income? Is HARM to other people ever justified, aside from ECONOMIC HARM? Are their limits to justifable ECONOMIC harm? ================================================================== ======================================================================= ================================================================== Copyright infringement: what is it? * deprives copyright holder of income? would that make copying legal if you simply would never buy? * copyright holder has right to determine distribution? more in keeping with current law ============= Without the mp3 compression format, file sharing might *still* be a fringe area. .wav files are ~ 10x larger: 30mB/song ========================================================================= ========================================================================= Cases and laws: 1790 copyright act: protected books and maps, for 17 years. "The earth belongs in usufruct to the living": Thomas Jefferson 1909 copyright act: copy has to be in a form that can be seen and read visually. Even back then this was a problem: piano-roll case (Piano rolls were *the* medium of recorded music back then.) 1972: Sound recordings were brought under Copyright. But coverage was retroactive, and now lasts until 2067. There are NO recordings in the public domain, unless the original copyright holder has placed them there. 1976 & 1980 copyright acts: mostly brings copyright up to date 1976 act formally introduces doctrine of Fair Use, and formally covers television broadcasts. ==================================== General copyright rules rules: Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights. Usual issue is rights of the DIRECTOR. Different categories may be subject to different rules Copyright is held by creator unless: Sold the work is a Work For Hire Covers *expression*, not content. Famous case Feist Publications v Rural Telephone Service: (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. (some European countries DO have "database protection") Gaak!! Note that if you buy a copy, you have right of private performance (so to speak; there's no special recognition of it), but not public. First Sale doctrine: after YOU buy a copy, you can re-sell it. Copyright law only governs the "first sale". Who owns the copyright? The creator, unless it is a "work for hire" or the copyright is sold Fair Use: Goes back to constitution: public has some rights to copyrighted material. Limited right of copying for reviews, etc Good-faith defense protects schools, libraries, archives, public bcasts limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. =================================== 1988: US signed Berne Convention 1989 Berne Convention Implementation Act: brings US into conformance with Berne convention: most famous for no longer requiring copyright notice on works. [Berne Convention has since become WIPO: World Intellectual Property Organization, a U.N. subsidiary. WIPO: one-state-one-vote + north-south divide => rules harming interests of poor countries were blocked. Example: pharmaceutical patents As a result, some international IP agreements are now under the jurisdiction of the WTO (World Trade Organization), which the first-world nations control more tightly. Who has jurisdiction over IP law could be HUGELY important: 3rd world is AGAINST tight IP law 1st world is FOR it (at least governments are) Brief comment on treaty-based law: A judge will work harder to find a way not to overrule a treaty, than to find a way not to overrule an ordinary law.] 1996: Communications Decency Act indecency v obscenity Section 230 1997: No Electronic Theft act: David LaMacchia case in 1994 David LaMacchia ran a "warez" site as an MIT student. He did not profit from the software downloads. Because of that, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes NONcommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owner could still go after you). mp3 file sharing had not yet become significant. 1998: Digital Millenium Copyright Act: * anticircumvention * safe-harbor / takedown 2005: recording movies in a theater is now a felony. ======================================================================== ======================================================================== Cases: Sony v Universal City Studios, 1984 Supreme court. The "Betamax" case 1985 Dowling v United States, 473 U.S. 207 Dowling ran a bootleg record company, as an Elvis fan. SCOTUS agreed with his claim that what he did was not "theft" in the sense of "interstate transportation of stolen property", or fraud in the sense of "mail fraud". (Copyright-infringement conviction still stood) Fair-use case introduced doctrine of Substantial Non-Infringing Uses 1991, Feist Publications v Rural Telephone Service: (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. 1992 Sega Enterprises v Accolade: Accolade made copies of the Sega ROM and reverse-engineered it. Accolade won. Copies of Sega's program were not being distributed; Accolade's only "harm" to Sega was as competitor. Atari Games v Nintendo: also in 1992; another reverse-engineering case; also won by the defendant 2000 Sony Computer v Connectix: Connectix copied Sony BIOS and reengineered it so that Sony Playstation games could be played on a computer. 2005: MGM v Grokster Grokster *could* be sued for copyright *inducement* 2006-07 _Da Vinci Code_ case: (actually filed in England, which has different laws): authors Leigh & Baigent of _Holy Blood, Holy Grail_ lost their suit against Dan Brown. They had introduced the theory that Mary Magdalene was the wife of Jesus and that Mary and Jesus have living heirs. This was a major plot element used in _Da Vinci Code_. Did Dan Brown violate copyright? ======================================================================== ======================================================================== DMCA Extends copyright to boat hulls. Who paid for *that*? Implements WIPO treaty PROVIDES LEGAL SUPPORT FOR COPY PROTECTION Provides (severe) penalties for even SPEAKING about circumvention (eg supplying online explanations); called 'anti-circumvention measures' [We will return to these later under the topic "rights of computer owners"] Provides LIMITED exceptions for those doing "legitimate" security research. Mandates macrovision-brand copyprotection for VHS tape Allows petitioning the Library of Congress to approve exceptions to the anti-circumvention rules; in cases where these have seriously impacted *non-infringing* use. Examples: when equipment to support the anti-circumvention measure (eg dongle, certain disk drive, certain hardware platform) is obsolete. Contains OCILLA: Online Copyright Infringement Liability Limitation Act protects ISPs from claims when users put up infringing material. Establishes legal framework for "takedown notice" Also for "putback notice", but there are more stringent rules for the latter. Who is Loyola's Takedown agent? Summary of Takedown/Putback process Takedown request must have * description of infringing material * good-faith claim that use is not legal * sworn statement requestor is authorized to act by copyright holder ISP must take down material "promptly", and notify the user. Putback: * description of material * good-faith claim use *is* legal, subject to perjury * acknowledgement of court jurisdiction ISP then can put material back after 10 business days (to give original complainant time to file a lawsuit). If suit is filed, material stays down. Does NOT protect end-user in any way; in fact, it puts burden on end-user. Does protect ISP Also specifies rules about subpoenas to ISPs for end-user identity Why do you think blackboard is so popular? Hint: not because it's easy to use. ===================================== ===================================== =========================================================================== Fair Use Legal basis for fair use One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Question: does the First Amendment imply some sort of fair-use right to quote other works? More often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution. Standard example is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality. Item 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad. PARODIES are also often considered as an Item 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. Item 2 refers to whether the work is nonfiction or fiction, etc Fundamental news facts (eg images from the Zapruder film of the Kennedy assassination) have been ruled "fair use" Item 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. Music sampling. Item 4: Sony v Universal: supreme court 5-4 decision apparently legalizing taping of TV programs for later viewing (but NOT archiving): Universal did not show how it was damaged. Introduced doctrine of SNIU, Substantial Non-Infringing Uses a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. The precise role of "Fair Use" in the court's reasoning is not as clear as it might be, but this certainly DID play a role. MGM v Grokster: Introduced doctrine of copyright inducement See w2.eff.org/IP/P2P/p2p_copyright_wp.php 1. Inducement: "[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." 2. Contributory infringement. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable. 3. Vicarious liability. Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees. Applies to ISPs ??? "Filtering" argument: if an ISP fails to implement blocking or filtering, they have vicarious liability. ================ Some sites once devoted to file-sharing and copy-protection technologies: musicview.com: GONE! dontbuycds.org: GOING GREAT! Oh, and check out darknoisetechnologies.com (oops, how about http://news.cnet.com/SunnComm-buys-music-antipiracy-company/2100-1027_3-5153609.html) Original idea was to add some subaudible "hiss" to recordings. It was subaudible when you listened directly, but when you tried to save a copy, or even record with a microphone from your speakers, the music would be ruined.