Week 4, Sept 22 Finish copyright justifications Legal reasoning on copyright Privacy RFID papers: garfinkel Loyola patent policy: luc.edu/ors/patentpolicy.shtml =============================================================================== =============================================================================== Copyright Ethical arguments about copying: Baase p 228 (started week 3) * I can't afford CDs * It's ok to take from large, wealthy corporations Baase dismisses this. Is there any underlying justification? * I wouldn't be buying it regardless * I have a right to give gifts (of tracks) to my friends * personal file-sharing is so small as to be inconsequential. * Everyone does it. * I'd be happy to get permission to use zzzz, but don't know where. "Eyes on the Prize" problem: en.wikipedia.org/wiki/Eyes_on_the_Prize * I'm posting as a public service * I'm posting to address some important social goal, _not_ for sharing per se. Legally, this is called "transformative" use * This is Fair Use. ======== Ethics of copyright: dependent on creator's business model?? Isn't this EXTREMELY utilitarian? Bottom line: *if* we want the old rules to continue, we need to find ways to ensure return on investment for creators of music, movies, and books. If. And such ways to ensure ROI (Return On Investment, a standard B-school acronym) can be legal, technical (eg DRM), or social. Again, how did we get into a situation where our ethical decision making involved analysis of ROI? Paper 1: what obligations do we have to creators? One argument is "very very little". ============================================================================== Touretzky DeCSS site: www-2.cs.cmu.edu/~dst/DeCSS/Gallery/ Check out efdtt.c, and the DVD logo!!! We'll return to this when we get to cyberspeech. parodies: South Park (almost any episode) Weird Al www.xkcd.com/c78.html Bored of the Rings wondermark.com Generally the creator of a parody does NOT need permission of the original author. ============================================================================== Sony v Universal: SCOTUS does NOT really spell out "Fair Use" 4-part analysis, though they hint at it in the section "Unauthorized Time-Shifting" It was the District Court that came to that conclusion. Paragraph 54: One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home Fred Rogers testified in favor of Sony Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented. ============================================================================== Project Gutenberg: gutenberg.org Eldred v Ashcroft: Eric Eldred maintained a website of public-domain books unrelated to Project Gutenberg's, although he did do some scanning/typing for them. What does it mean for copyrights if Congress extends the term continuously? ============ Youtube: how are they different? Youtube was sued by Warner; NEGOTIATED SETTLEMENT ================================== Wikipedia famous copyright cases: en.wikipedia.org/wiki/List_of_leading_legal_cases_in_copyright_law 1964: Irving Berlin et al. v. E.C. Publications, Inc.: "Mad Magazine case" 1991: Basic Books, Inc. v. Kinko's Graphics Corporation just because it's been published in a book doesn't mean you can use it freely in teaching a course. 1999: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. ======================= Baase p 232-233: Kelly v Arriba Soft: 2002 Perfect 10 v Google: 2006 -- ?? Kelly: photographer incensed that Arriba Soft's "ditto.com" search engine was displaying thumbnails. 9th Circuit ruled thumbnails WERE fair use, but not links to full-sized images. They later reversed that last point. Purpose and Character: use is transformative Nature of work: creative work on internet; "slightly in favor of Kelly" Amount & Substantiality: irrelevant; whole image _must_ be copied Effect on market: The court found no harm to Kelly's market; in fact, by helping people find Kelly's images they might help him. Use of THUMBNAILS weighed heavily here: they aren't nearly as attractive as originals. =================== Perfect 10: sold nude images; had had a business plan to sell thumbnail images Question: does this undermine the thumbnail analysis in Kelly v Arriba Soft? This question goes pretty much to the heart of Google's ability to provide image searching. Google search engine frames full-sized images, and caches thumbnails. Demo, using "kittens"?? Google's images came up only when some third party posted P10's images. District court: links *were* ok, but thumbnails were not. Well, the court granted an INJUNCTION against the thumbnails, but not against the links. The case is still not decided completely. Wikipedia documents District Court ruling in en.wikipedia.org/wiki/Perfect_10_v._Google_Inc Judge Howard Matz: The first, second, and fourth fair use factors weigh slightly in favor of P10. The third weighs in neither party’s favor. Accordingly, the Court concludes that Google’s creation of thumbnails of P10’s copyrighted full-size images, and the subsequent display of those thumbnails as Google Image Search results, likely do not fall within the fair use exception. The Court reaches this conclusion despite the enormous public benefit that search engines such as Google provide. Although the Court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of the four fair use factors. 9th circuit: all of it is LIKELY ENOUGH fair use that P10 cannot get an injunction!! use was TRANSFORMATIVE Google may still be liable for contributory infringement Appeals court ruling points: 1. Google DMCA defense 2. P10's "display right" and "distribution right" are at issue. 3. [server test: whose server are the images really on?] Applying the server test, the district court concluded that Perfect 10 was likely to succeed in its claim that Google’s thumbnails constituted direct infringement but was unlikely to succeed in its claim that Google’s in-line linking to full-size infringing images constituted a direct infringement. Id. at 84345. As explained below, because this analysis comports with the language of the Copyright Act, we agree with the dis- trict court’s resolution of both these issues. Google isn't doing it: [6] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen. Contributory infringement is not at issue. Perfect 10 incorrectly relies on _Hotaling v. Church of Jesus Christ of Latter-Day Saints_ and _Napster_ for the proposition that merely making images “available” violates the copyright owner’s distribution right. At this point the appeals court turns to Google's Fair Use defense In applying the fair use analysis in this case, we are guided by Kelly v. Arriba Soft Corp., ... In Kelly, a photographer brought a direct infringement claim against Arriba, the operator of an Internet search engine. ... We held that Arriba’s use of thumbnail images was a fair use primarily based on the transformative nature of a search engine and its benefit to the public. Id. at 818-22. We also concluded that Arriba’s use of the thumbnail images did not harm the photographer’s market for his image. Note DC's reluctance to put much stock in "benefit to the public" Purpose and Character: Again, use is transformative. Very much so. Just what *is* this?? DC: this was diminished, in terms of Google's use of thumbnails, by P10's plan to sell thumbnails. Also, google's use is commercial 9th: " In conducting our case-specific analysis of fair use in light of the purposes of copyright,": this is an explicit acknowledgement of the Copyright Clause. Bottom line: P&C goes from DC "slightly in favor of P10" to "heavily in favor of Google" Nature of work: no change; still "_slightly_ in favor of Kelly" Part of the "slightly" was that the images were already published. Amount & Substantiality: irrelevant; whole image _must_ be copied Effect on market: P10 did not prove their market for thumbnail images was harmed. So this didn't count. BUt how would they ever do that?? "We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images." ============================================================================== ============================================================================== ============================================================================== Start Privacy Privacy from: * government * commercial interests * workplace * local community (ie online info about us) Strange history: once upon a time we were mostly concerned about privacy from the government, not from private commercial interests. What do computers have to do with privacy? Old reason: they make it possible to store (and share) so much more data Newer reasons: they enable complex data mining Allow us to find info on others via google Records are kept that we never suspected (eg google searches) electronic eavesdropping Baase, p 45: Stasi and non-computerized privacy invasion Fourth amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Baase p 47: computers "make it easy to produce detailed profiles of our personal characteristics, relationships, activities, opinions, and habits" Maybe also of what sales pitches we're likely to respond to?? Some non-governmental privacy issues: * shopping data * RFID chips in cards and merchandise * search-engine queries * cellphone GPS data * event data recorders in automobiles ========================================================================== ~1990, a big privacy issue was Caller ID. Whose privacy was at stake? Facebook and MySpace have made us our own worst privacy leakers. Facebook and college admissions, employment Some things we want to keep private: * past lives * life setbacks * medical histories * mental health histories * finances * alcohol/drug use * most sexual matters, licit or not * private digressions from public facade * different facades in different settings [friends, work, church] * comments we make to friends in context * minor transgressions (tax deductions, speeding, etc) Baase p 48: search-query data: Google case, AOL leak. AOL leaked 20,000,000 queries from ~650,000 people. MANY of the people involved could be individually identified, because they: * searched for their own name * searched for their car, town, neighborhood, etc Many people searched for medical issues. =================================== Why do we care about privacy? Is it true that we wouldn't care if we had nothing to hide? Or is is true that "we live 'in a nationwhose reams of regulations make alost everyone guilty of some violation at some point'" [Baase p 69] Once upon a time (in the 1970's) there was some social consensus that private recreational drug use was reasonably well protected: police had to have some specific evidence that you were lighting up, before they could investigate. Now, police are much more free to use aggressive tactics (eg drug-sniffing dogs without a warrant). ====================================== Event data recorders in cars: lots of cars have them. ====================================== Smyth v Pillsbury, 1996 Summary: Michael Smyth worked for Pillsbury, which had a privacy policy governing emails that said Pillsbury would NOT use emails against employees, and that emails "would remain confidential and privileged" Specifically, Pillsbury promised that e-mail communications could not be use against its employees as grounds for termination or reprimand. Smyth and his boss exchanged emails in which marketing employees were discussed in an unflattering light. The phrase "kill the backstabbing bastards" appeared. Smyth sued for wrongful termination. He lost. Whatever happened to the CONTRACTUAL issue? Hint: long history of cases upholding "employment at will" doctrine. Judge: Charles Weiner How would the case have been different if: pillsbury had an email policy allowing such access? pillsbury had no policy at all? What are employers' interests in email exchange? Were the emails read out-of-context? (that is, Smyth and his boss were just being aggressive) Circumstances when you CANNOT just fire someone: contractual or union protections firing for refusal to do illegal acts firing for racial, ethnic, & religious discrimination (civil rights act) firing for age discrimination whistleblower protection Americans with Disabilities Act protections Does OWNERSHIP matter? No!! ownership of a phone ownership of stationery ownership of an apartment building ========================================================================== # Smyth v. Pillsbury: Pennsylvania # Bourke v. Nissan: California similar: Bourke worked for Nissan; email was reviewed, it was highly personal, she got low evaluation. The email probably but not definitively contributed. # Shoars v. Epson: California Alana Shoars was involved in email training at Epson. She found supervisor Hillseth had been printing & reading employee emails. She objected, and removed some of the printouts from Hillseth's office. She also reported the incident to Epson's general manager. Hillseth then had Shoars fired, allegedly because she had asked for a private email account that was not accessible by Hillseth. Epson had informed employees that email was "private & confidential" California had a law prohibiting tapping of telephone lines. The law may have covered other communications, but that part was dismissed on a technicality: tapping alone didn't constitute eavesdropping, and the eavesdropping issue was never brought up. Discuss Smyth v Pillsbury: Contract v Tort Judge held that corporate eavesdropping is not offensive. Duh. (Could it be offensive IF the company had promised not to??) Judge says Smyth lost because email was "utilized by entire company" and Smyth's emails were "voluntary". Were they? Reasonable expectation of privacy does NOT mean the search is "offensive" Only searches that are "offensive" would allow legal action regarding firing of an "at-will" employee. Judge: Pillsbury's actions did not "tortuously" invade privacy unstated by judge: prevention of sexual harassment as justification. Arguably, though, this kind of talk between "buddies", with the self-image projected to fit that context, is EXACTLY what some interpretations of privacy are about. Not all context is "professional". What if Pillsbury recorded water-cooler or bathroom conversation? What the heck *is* a "reasonable expectation of privacy"??? "In the absence of a reasonable expectation of privacy, there can be no violation of the right to privacy." Could Smyth have sued for DAMAGES, instead of reinstatement? Footnote to judge's ruling: [eh-STOP-uhl] FN2. Although plaintiff does not affirmatively allege so in his Complaint ... the allegations in the Complaint might suggest that plaintiff is alleging an exception to the at-will employment rule based on estoppel, i.e. that defendant repeatedly assured plaintiff and others that it would not intercept e-mail communications and reprimand or terminate based on the contents thereof and plaintiff relied on these assurances to his detriment when he made the "inappropriate and unprofessional" e-mail communications in October 1994. The law of Pennsylvania is clear, however, that an employer may not be estopped from firing an employee based upon a promise, even when reliance is demonstrated. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990). Jurisdiction problems: what if one party to an email lives in a state that grants statutory privacy protections? This problem comes up all the time with phone calls: Plaintiffs: Kelly Kearney, Mark Levy; worked for company acquired by Worldcom. Worldcom case: Plaintiffs calls were recorded in Georgia, but plaintiffs were calling from California, which forbids that without notification of ALL parties. Massachusetts case: jurisdiction depends on *where* wiretapping physically took place, not where the speakers were. How does telephony relate to email? What *is* our expectation of privacy? What about personal use of gmail account, while at work? What about use of, say, a personal gmail account while at work? If employer monitors transactions with gmail.com? If employer obtains email from google directly? luc.edu/its/policy_email_general.shtml Persistence: email sticks around, although people USE it as if it were like the phone. ============================== Paul v Lankenau Hospital 524 Pa. 90, 93, 569 A.2d 346,348 (1990) ============== ======================= PA court Atlantic Reporter reference 2nd Series, vol 569 Starts page 346, actual reference on page 348 Dr Parle Paul, MD, would take home discarded hospital equipment. He would sell it or send it to clinics in Yugoslavia, his homeland. He got permission to take five discarded refrigerators. Unfortunately, he apparently did not have the RIGHT permission. Oops. He was fired, and filed suit for reinstatement and for defamation. A jury trial resulted in a verdict in Paul's favor, both for damages and reinstatement. Superior court affirmed. From the appellate decision: Equitable estoppel is not an exception to employment at-will. The law does not prohibit firing of an employee for relying on an employer's promise. Exceptions to the [at-will firing] rule have been recognized in only the most limited curcumstances, where discharges of at-will employees would threaten clear mandates of public policy. [some such: racial/ethnic discrimination, whistleblowing, refusal to commit illegal acts, unionizing, ...] Look at this another way. Smyth and his lawyers *knew* that he could be fired for any reason, regardless of Pillsbury's promises to the contrary. Smyth was asking for application of the TORT of invasion of privacy to be applied. Tortious invasion of privacy exists, but the standards are high and privacy must be a reasonable exception. In court cases, you can't add 30% of an argument for equitable estoppel and 70% of an argument for tortious invasion of privacy to get 100% of a case. ONE argument must be 100% sound. ======================================== Who decides when we have a "reasonable expectation of privacy"? If most people think email privacy is easy to breach, does it lose protection? Is email any easier to spy on than the phone? ============================================================================ Facebook/MySpace: When did Facebook stop being "closed"? Did anyone care? Facebook, MySpace, google, deja news, and dating deja.com (now run by google) Why do we want privacy? ====================================== Baase p 61: case study on federal DB on all US college students. Benefits: * tracking graduation records * tracking how programs & funding affect student performance Drawbacks: * cradle-to-grave tracking of behavior issues, sometimes unsubstantiated * identity theft * errors =============================================================================== gmail Who is reading all your gmail? Does it matter if it is not a person?