Ethics Week 4


Finish chapter 2 of Baase on privacy
Read http://cs.luc.edu/pld/ethics/garfinkel_RFID.pdf on privacy

Copyright cases
DMCA
 

I discovered another interesting line from the Sony decision, in paragraph 46:
Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, ...
This is a remarkably strong statement about commercial use! The Supreme Court has backed away from this considerably in later decisions.

On page 227, in the first paragraph in 4.3.5, Baase states

[Copyright infringers] benefit from the creativity and effort of others without paying for it. To most people, that seems wrong.

This is as good a statement of any of the idea that the holder of a copyright is entitled to try to profit from their work. Note, however, that copyrights do not extend to several areas where creativity and effort may be expended to come up with a profit-making strategy: business ideas are not copyrightable and the general legal opinion is that it is fair for someone to take someone else's business strategy and run with it. That is the essense of the free market.

Some examples:

http://www.crews.org/curriculum/ex/compsci/articles/ethics.htm:
We are taught from a young age that plagiarism (copying other's work) is wrong.  One might say, it is like cheating on a test when you burn a CD copy of someone else's music or game.  However, most people don't associate copying of songs, games, videos, etc. as being wrong.  Just because it is easy and hard to get caught does not make it right.  The rights of the creator must be protected if we are going to be a society that is creative and inventive.

Does copyright violation have anything to do with plagiarism?

http://guweb2.gonzaga.edu/faculty/alfino/dossier/Papers/COPYRIGH.htm: good essay distinguishing copyright from property (see ¶ 2). Also see:
The legal principle at stake in the Donaldson case has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interests are more important than the public good of having access to information. The ethical issue takes a metaphysical turn when we ask, as we shall in section II, just what it is that constitutes the intellectual property protected by copyright. Again, if the "substance" of intellectual property is constituted by statutory fiat, then the limitations of the right are not analogous to limitations of natural rights.

http://beadwork.about.com/od/rsourcesforprofessionals/a/EthicsCopyright.htm: you might not think home craftwork would be fraught with such copyright issues. But there are. However, is the issue described in the following (spliced) paragraph really one of copyright?

[Copyright] does not cover ideas, techniques, or facts. There are some ethical considerations to take into account though. Is this an original technique developed by your teacher that hasn't been published yet? Are you taking potential customers away from your teacher?

Does it matter?

Is copyright just a matter of "obeying the law"? Or do we have some deeper obligation to musicians and authors?

There are a lot of compilations of folk music that have been copyrighted. As compilations. What duty do we owe the compiler? (There is a famous United States example here, that I cannot find right now.)

MGM v Grokster

Introduced doctrine of copyright inducement
See http://w2.eff.org/IP/P2P/p2p_copyright_wp.php for a lengthy article analyzing the decision.
The decision syllabus is at http://www.law.cornell.edu/supct/html/04-480.ZS.html, with links to Souter's opinion.
 
Note that the District Court and the Ninth Circuit granted summary judgement to Grokster!


1. Inducement:
Held: One 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, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses. Pp. 10—24.
 
2. Contributory infringement.
Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable. The Sony precedent might have blocked this, but if your primary goal is unlawful (as was Grokster's), you lose.
 
3. Vicarious liability.
Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees.
Despite offsetting considerations, the argument for imposing indirect liability here is powerful, given the number of infringing downloads that occur daily using respondents’ software. When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement.
Note that part of the issue here is the practicality (or lack thereof) of going after individual users.
 
"Filtering" argument: if an ISP fails to implement blocking or filtering, they have vicarious liability.


MGM had been hoping to get Sony v Universal overturned. In this they failed. Paragraphs (b) and (c) in the syllabus addresses the Sony precedent. The bottom line is that, while the Sony SNIU doctrine remains, Grokster went further (paragraph c):
The rule on inducement of infringement as developed in the early cases is no different today. Evidence of active steps taken to encourage direct infringement, such as advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and overcomes the law’s reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use.

Note that paragraph (d) begins: "On the record presented, respondents’ unlawful objective is unmistakable."

Finally, the court was unanimous in ruling that Grokster was liable for inducement. The 5-4 split was over whether Sony needed formal modification, with the answer being no for the time being.

What if Grokster had not actively induced users to engage in copyright infringement? Would that have gotten them off the hook?

Baase points out on page 218 (1st paragraph) that the DMCA has eroded this doctrine of SNIUs-make-it-ok; under the DMCA, circumvention of copy protection is illegal even if it has SNIUs. But this applies only to circumvention, not other potentially infringing uses.

At the top of page 216, Baase points out that it is not just computer technology that leads to societal debates about whether the technology should be banned. Drugs, guns, and power tools are also in this category.


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.
   
 
Project Gutenberg: http://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?



Amazon has now scanned in most of the books they sell, and offers full-text search of the book contents. This is intended as providing an online equivalent of browsing in a physical bookstore. They apparently did not get a lot of publisher permissions to do this.

Apparently, however, no major lawsuit has ever been filed!

Note that what Amazon has done arguably earns them ZERO dmca shield: they've actively scanned the books, and keep the images on their servers.

Clearly, "effect on the market" must be presumed POSITIVE. However, see http://www.authorslawyer.com/c-amazon.shtml.

TRANSFORMATIVE use

This describes copying where the "purpose .. of the use" (factor 1) is wholly different from the purpose of the original. Typically it may be important that the new use offer something to the public that was otherwise unavailable.

Parodies are usually considered transformative use.

Another example: from Diebold v Online Policy Group, & some Swarthmore students: (Actually, they were suing Diebold; the students had posted some internal Diebold memos, and Diebold was wildly filing DMCA takedown notices. The students, and the EFF, felt these were an abuse of the DMCA process.)

From the judge's opinion:
Finally, Plaintiffs' ... use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.

We'll return to this under "Free Speech"

ASCAP

How music copyrights are "supposed" to work: ASCAP (the American Society of Composers, Authors, & Publishers)

ASCAP is largely a failure.
 
Does it MATTER that ASCAP is a failure?
ASCAP: collects on behalf of all members, = original songwriters.
 
To perform, you need a license from ASCAP, BMI, & third one (SESAC?) Even if you write your own songs and perform only them, you still may need these licenses! While that sounds appalling to some, it's based on the not-implausible idea that the nightclub/venue where you play is the entity to actually pay the fees, and they have no guarantee you won't whip out an old Beatles song. [Richard Hayes Phillips, a musician who plays only his own and traditional material, did apparently beat BMI here. But not without a prolonged fight.]
 
Blanket performance licenses are generally affordable, though not negligible.
 
You need a license to play recorded music at public places, too.  You do NOT get this right automatically when you buy a CD.
 
ASCAP collects your money, keeps about 12-20%, and sends the rest off to its members, IN PROPORTION TO THEIR RADIO PLAY.
 
So, if you play music no longer found on the radio, the original songwriters will get NOTHING.
 
ASCAP, BMI are very worried about new ideas. They seem to want to keep the rigid division between listeners and performers, and between public & private listening. They are very concerned about web radio, and have had reasonable success in making it unaffordable for any but commercial stations with traditional formats.

Kelly and Perfect 10

Baase p 232-233:
    Kelly v Arriba Soft: 2002
    Perfect 10 v Google: 2006 -- ??

Kelly was a photographer incensed that Arriba Soft's "ditto.com" search engine was displaying thumbnails of his images. The 9th Circuit ruled thumbnails WERE fair use, but not links to full-sized images. They later reversed that last point.
  
Four-factor analysis:
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; they claimed to have a business plan to sell thumbnail images to cellphone users.

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"??

P10's images came up on google only when some third party posted them, apparently without authorization.

District court:

The District Court ruled that 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 (and probably won't be).

Wikipedia documents the District Court ruling in http://en.wikipedia.org/wiki/Perfect_10_v._Google_Inc.
   
Judge Howard Matz (emphasis added):
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.
   

Ninth Circuit

Ninth Circuit then reversed this: all of it is LIKELY ENOUGH (as of 2008) fair use that P10 loses their injunction!!
Their preliminary decision at http://webpages.cs.luc.edu/~pld/ethics/Perfect10vGoogle9thCir12-2007.pdf.

google's use was TRANSFORMATIVE.

Google might still be liable for contributory infringement. However, it appears that P10 has mostly abandoned the case.

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?]

From the preliminary decision:
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 district court’s resolution of both these issues. [15458 (15), last ¶]

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.[15460 (17)]

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. [15463 (20)]
   
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. [15466 (23)]

Recall the District Court judge'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??
District Court: 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 Circuit: "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. [15470 (27), ¶ starting in middle of page]

Bottom line: Purpose&Character goes from DC's "slightly in favor of P10" to Ninth's "heavily in favor of Google"

Also note, same paragraph:
The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.

One of the cases cited as evidence of this directive is Sony. Another is the 1993 Campbell case (about a 2 Live Crew parody of the Roy Orbison song Pretty Woman), in which the Supreme Court stated that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use". [15471 (28)]. (See http://supreme.justia.com/us/510/569/case.html. A major element of the Campbell case was that the Supreme Court backed away from the idea that commercial use would seldom qualify as "Fair use"; compare this with the earlier Sony quote "although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,....")

Also:  
we note the importance of analyzing fair use flexibly in light of new circumstances [15471 (28)]


   
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; see [15473 (30)]

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?? More precisely, "the district court did not find that any downloads for mobile phone use had taken place." [15470 (27), last line of page]

Whoa! Is that last issue really fair? Did the DC even consider that point?

More at [15474 (31)], end of 1st and 2nd paragraphs


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."

Note how the appellate court sort of finessed the "effect on the market" issue.
 
Another option: why were P10's images ever found? Because users uploaded them illegally. There is another path here: to allow google to provide thumbnails and links only so long as the originals are present. Then, P10 can go after the originals.

An interesting question: if P10 had been selling something more socially acceptable than soft-core pornography, might this decision have gone the other way? There's an old legal saying that "bad cases make bad law"; is this an example?

 
 
Dozier Internet Law, http://www.cybertriallawyer.com


1. Lots of solid mainstream copyright cases:
    architectural designs
    jewelry designs
    advertising work (sitforthecure.com)
    stolen websites for:
        gamers sites
        physicians
        small businesses
         
2. Their AMAZING user agreement:
    http://dozierinternetlaw.cybertriallawyer.com

Where are they coming from?
     

Privacy

What is privacy all about? Baase (p 45) says it consists of
Are these all? Note that Baase put control of information as #2; I moved it to #1.

In some sense the second one is really a different category: the need to get away from others. A technological issue here is the prevalence of phones, blackberries, and computers and the difficulty of getting away from work.

The third one is to some degree a subset of the first: who gathers information about us, and how is it shared? Another aspect of the third one is freedom from GOVERNMENTAL spying. Privacy from the government is a major part of Civil Liberties.

Privacy is largely about our sense of CONTROL of who knows what about us. We willingly put info onto facebook, and are alarmed only when someone reads it who we did not anticipate.

Privacy from:
Sometimes, when we try to argue for our privacy, we get asked what do you have to hide? Is this fair?

On the other hand, should we care at all about privacy? Or is it just irrelevant?

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: 
 
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:

 
~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, any mixed recreational & professional use
 
Some things we want to keep private:
   

Why do we care about privacy? Is it true that we wouldn't care if we had nothing to hide? What about that last "minor transgressions" one on the list? Are they really minor?

Or is is true that "we live 'in a nation whose reams of regulations make almost 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).

Is this a privacy issue?

On page 47, Baase quotes Edward J Bloustein as saying that a person who is deprived of privacy is "deprived of his individuality and human dignity". Dignity? maybe. Individuality?



Privacy from the government
This tends not to be quite as much a COMPUTING issue, though facial recognition might be an exception. "Matching" was an exception once upon a time.
   
To large extent, we'll deal with this one later.
   
Commercial data, based on transaction history
    Primary use is some sort of marketing

Other data
    legal, workplace, medical, etc
    Traditional "paper" data;
    The computerization issue is easy/universal access to such data
   
personal
    facebook, etc
     

Some data collection that we might not even be aware of:


 

Baase p 48: search-query data: Google case, AOL leak.
In August 2006, AOL leaked 20,000,000 queries from ~650,000 people. MANY of the people involved could be individually identified, because they:
Many people searched for medical issues.

Wikipedia: "AOL_search_data_scandal"
    Thelma Arnold

Mirror site: http://gregsadetsky.com/aol-data/
   
Google strongly resisted releasing "anonymized" search data to the government.

What would make search data sufficiently anonymous?

What constitutes "consent" to a privacy policy?
Are these binding? (Probably yes, legally, though that is still being debated)

Have we in any way consented to having our search data released?


Event data recorders in automobiles

Who owns the data? Should you know it is there?

What if it's explained on page 286 of the owners manual?

Should it be possible to use it AGAINST you?

See wikipedia: "Event_data_recorder"


Caller ID

When it first came out in the early 1990's, Caller ID was widely seen as a privacy intrusion. That is, it took away your "right" to call someone anonymously. Actually, that is a plausible right if you're calling a commercial enterprise; if you don't want them calling you back, you should be able to refuse to give them your number.

Within a decade, Caller ID was widely seen as a privacy boost: you could control who could interrupt you. This is privacy in sense #2 above; the original issue was privacy in sense #1.

Caller ID never caught on with stores; it did catch on with ordinary people.

Is there any right to phone someone anonymously? What if you're trying to give the police a tip? What if you're a parole officer?

RFID

This makes a lot of sense for inventory management. But suppose the tags are not deactivated when you leave. Then anyone with a portable scanner can identify all the tagged items you have with you:
You might carry such broadcasting tags because you didn't know about them. But you might carry them even if you did, if that was the only (or most convenient) way to be sure of being able to return things.


SCOTUS cases on privacy -- Baase pp 69ff

1928: Olmstead v United States: 4th amendment does NOT apply to wiretaps

1967: Katz v United States
4th amendment does too apply to wiretaps! Privacy may still exist in a public area.
Doctrine of "reasonable expectation of privacy" (REoP)

Problem with REoP: as technology marches on, isn't our reasonable expectation diminished? And does this then give the government more license to spy?

1976: US v Miller
information we share with others (eg our bank) is NOT private. Government can ask the bank, and get this information, without a warrant. (However, the bank could in those days refuse.)

1979: Smith v Maryland: reduction of REoP by the police is not SUPPOSED to diminish our 4th-amendment rights. However, in that case the supreme court ruled that "pen registers" to record who you were calling did NOT violate the 4th amendment.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=442&page=735


Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable."

First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial....

If you want to keep a number private, don't call it!

Note the crucial issue that the defendant voluntarily shared the number with the phone company!

Justices Stewart & Brennan dissented

The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled "to assume that the words he utters into the mouthpiece will not be broadcast to the world." Katz v. United States

2001: Kyllo v United States
Thermal imaging of your house IS a 4th-amendment search! This is a very important case in terms of how evolution in technology affects what is a REoP

http://www.law.cornell.edu/supct/html/99-8508.ZS.html

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.

Video surveillance -- Baase p 72


Big issue in Chicago: there are both "obvious" and "hidden" cameras

2001 Super Bowl: Tampa police used facial-recognition software on all 100,000 fans.

London: heavy camera use to:

London in 2005:


Facebook/MySpace:
 
When did Facebook stop being "closed", ie access was limited to your "network"? Did anyone care?
 
Facebook, MySpace, google, deja news, and dating
 
deja.com (now run by google)
 
Facebook mini-feeds, Baase p 55
Allowed active notification to your friends whenever you change your page. Why is this a privacy issue?

I note that lots of people have left these enabled.