Computer Ethics, Fall 2010

Corboy Law Room 523
4:15-6:45 Mondays
Goals:
Example: is file-sharing stealing, if nobody lost anything?

Overview of some issues:
         

Week 1 Readings

Read all of chapter 1 and the first three sections of chapter 4, especially:
    cellphone case-study in 1.2.2
    ATM case study of change brought by technology in 1.3.1
    What is ethics? 1.4.1
    What is intellectual property?: §4.1.1


  
Michael Eisner's June 2000 statement to Congress (edited, from Halbert & Ingulli 2004).



1.4.2: ethical theories
There are two great (classes of) ethical theories:
    1. Deontological: rules-based
    2. Utilitarian: consequences-based
    3. Relativism: superficially appealing, but ultimately unsatisfactory

Midterm, final exam, 3 papers

Plagiarism rules: be sure ALL quotations are marked as such, and also cited.

When you write, be sure you organize your points clearly and address the question. Grammar and style count for MUCH less!


§1.3.1: Evaluation of Automatic Teller Machine side-effects
Walter Wriston was CEO of CitiBank in the 1970's when ATMs were then widely deployed in New York City. Wriston was at one point credited with the realization that many if not most New Yorkers actually preferred ATMs to using human tellers; they did not particularly like that form of human contact. [source: newspaper article I read long ago]

Furthermore, ATMs are available when it's convenient for you; many banks still have very limited late hours.

As for unemployment, Baase has data that tell a different story:
    1983   480,000
    1993   301,000    ( this drop was due in part to ATMs)
    2006   600,000   Wow!

As for the electronic trail, that exists equally for teller transactions. If you live in a small town, the ATM is likely to offer greater privacy.

One proposal for addressing ATM crime is to give patrons a "duress PIN", eg their regular PIN backwards. The main reason this has never been implemented is that there appears to be little need for it.


§1.3.2: "Themes"

Why study computer ethics?

1. Look at old problems in new setting. Do old analogies apply? Classic case: copyright. Note that in some sense computing provides a testbed for classical ethics: computing supplies many examples of classical ethical dilemmas in a new context.

2. New rules required as we adapt to new technology. Examples:
3. Varied sources of solutions to new problems. Example: cell phone case study, Section 1.2. Cell phones led to:
4. Global scope of the Internet: good and bad
    jurisdictional chaos: if you buy online, where do you file the lawsuit?
    it is harder to be isolated (this was meant as a "good" at the time I wrote it; now I'm less sure)
    very wide, low-cost distribution of knowledge
    
5. Tradeoffs
    between privacy and convenience. True of computers, true of door locks.
   

Computers are a form of technology. Why do we talk about "computer ethics" but not "automobile ethics" or "aircraft ethics"? (Note that we do talk about medical ethics and biotechnology ethics.)

Ethics
Some people like to distinguish between ethics and morals by saying morals are what we do; ethics is the study of morality, or how we reason about what we do.
    
Are we going to figure out right and wrong here? No. But we will figure out how to:

Law

What are laws for?
For the last one, note that the goal is to encourage investment. Possibly at the expense of justice! (Think about that one; is that a bad thing?)

CRIMINAL v CIVIL law

What the rules are:
    contracts
    torts (non-contractual obligations)
    criminal law

What is "illegal"? Are copyright violations "illegal"? Usually, something is "illegal" if it involves a violation of criminal law. Defamation (libel/slander), for example, is seldom referred to as "illegal", despite the potential legal consequences.

legal safeguards for you or your organization
    economic consequences of established rules
    the "rule of law"

how the law is actually being interpreted

Law and the courts
    Federal:
            Supreme court
            Circuit courts
            District courts

    State courts:
       Note the New York State "Supreme" courts are the ones to hear parking infractions.
    
Judges write OPINIONS, which carry significant weight with other judges.


Music file sharing


David Post (Temple Univ Law School) [Sometime around 2000?]
    If seven million people are stealing, they're not stealing.

What did Dr Post mean by that?

Questions about what you download (from better to worse?)
  1. Is it ok to listen to the radio?
  2. Is it ok to play the radio at a party?
  3. Is it ok to record off the radio? What about TV?
  4. What about downloading lyrics?
  5. What if I already own the CD? (either lyrics or entire tracks)
  6. Is it ok to download music files off the internet?
Most people would probably be ok with all but #6 here. Note that #2 might be construed as illegal if the party were in any way not a "private home affair". One court did rule against #5, in a lawsuit against mp3.com.

Some of the first early popular sites on the internet were song-lyric repositories. Sometime in the late 90's most of the originals apparently got cease-and-desist letters; one industry-supported site would display the lyrics but wouldn't let you copy or save them, and the display would vanish after ~20 seconds. (Had the developers not been aware of screen-capture?)


Why isn't the illegal copying of books (eg through photocopying) a major issue?

Why wasn't the illegal production of audio cassette tapes (from LPs, radio broadcasts, and live concerts) a major issue?


Now let's expand the previous list to focus on file sharing.:
  1. Is it ok to borrow a friend's CD?
  2. Is it ok to give a digital copy of a track to a friend?
  3. Is it ok to give a copy of an entire CD to a friend?
  4. Is it ok to let your friend pay you for the blank disk?
  5. Is it ok if you just met your friend 30 seconds ago, for the sole purpose of selling the cd, and the price also includes a nominal copying charge?
Many people have trouble with #3, though it somewhat depends on who you mean by "friend" (cf #5).

One classic slippery-slope argument is the Bart & Fat Tony d'Amico scene in Simpsons 8F03, written by John Swartzwelder.

 At work, Fat Tony gives Bart a present, in gratitude for his help with the distribution of smuggled cigarettes.
   
Bart: Uh, say, are you guys crooks?
Tony: Bart, um, is it wrong to steal a loaf of bread to feed your starving family?
Bart: No.
Tony: Well, suppose you got a large starving family.  Is it wrong to steal a truckload of bread to feed them?
Bart: Uh uh.
Tony: And, what if your family don't like bread?  They like... cigarettes?
Bart: I guess that's okay.
Tony: Now, what if instead of giving them away, you sold them at a price that was practically giving them away.  Would that be a crime, Bart?
Bart: Hell, no!
Tony: Enjoy your gift.

Is it legal for me to play this in class?

One way to look at these slippery slopes is to be very wary of "incremental" arguments in ethics. On the other hand, another view (which we'll come to) is that the real issue with copyright is preserving the musician's ability to earn money, and (perhaps) therefore anything that doesn't actually interfere with that is ok. Which of the items on the list might interfere with the musician's income?


Conflict:

Is downloading the same as theft? DISCUSSION

Software-copying model: people who illegally copy software often would never buy it; they're just "collecting". No sale is lost in these cases.

Lost sales: if you build a better mousetrap, my mousetrap business may lose sales. Lost sales -- or other harm -- is NOT necessarily wrong!!

Keep this "harm is not wrong" idea in mind.

.

"Intellectual Property"

[Why am I using quotation marks here?]

What is the LEGAL basis for music protection? Copyright.

Copyright is sometimes referred to as a form of "Intellectual Property" (along with patent rights and some trademark and trade-secret rights). Is there such a thing as "Intellectual Property"?

     Intellectual property is the work-product of the human mind.  [Halbert & Ingulli, CyberEthics, 2004]
        
How about
        
        IDEAS are the work-product of the human mind
        
Can ideas (including music) be PROPERTY?

What is property? (Legal and social definitions)

"the right of use, control, and disposition" (topics.law.cornell.edu/wex/real_property)
the "expectation ... of being able to draw such or such an advantage from the thing" in question [Jeremy Bentham, quoted in en.wikipedia.org/wiki/Property_law]

Three classes of property:      
Note that "intellectual property" can certainly meet Bentham's standard of "expectation... of being able to draw .. an advantage".
       
Traditionally, "real property" is considered much more tangible. Nobody can walk off with it, for example. However, easements are a form of intangible real property right.

Intellectual property is a form of abstract property. Here are some other forms of abstract property:
Natural law notion of property: you have a right to things you have created with your own labor (eg things you have made). You have a right to things you have earned.

Classic proponent: John Locke 1632-1704 (mentioned in Baase p 33)

The natural right to real property (land & buildings) is slightly hazier in theory, but much more solid in practice. The frontier version of the theory was that you have the right to the land you have settled, developed, and farmed; the practice is that you have the right to use your land as you see fit (subject to zoning, water, and environmental laws).

The big question: Do we have natural rights to IDEAS?

Tradition goes both ways. Ideas meet the Lockian test of things created with your own effort, BUT many ideas have also traditionally been regarded as in the "public domain".

One alternative to natural rights is sometimes referred to as "legal rights" or "social rights": rights are assigned by law for a social goal.

Another alternative is the idea of intellectual commons: that ideas are held in common for the benefit of everyone, and that no one has an individual right to an idea.


United States Constitution

US Constitution states (the "copyright clause") (italics added by me)

Article I, Section 8 - Powers of Congress
       
...

To establish Post Offices and Post Roads;

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;

To constitute Tribunals inferior to the supreme Court;

...
       
What is "limited"?

More deeply, what does this say about the nature of our "right" to our works and inventions? It seems clear here that the writers of the constituton did NOT see this as a natural right. The justification for the right is because it promotes a societal goal, the Progress of Science and useful Arts.

How can something be property, if it goes away? People ask this about copyright in the other direction, quite seriously, as if it should be obvious that copyright should be perpetual.

The word "property" carries all sorts of implications to the non-lawyer. But how can a music track be property if you can download the song and I still have everything I had before?

Under the law, the notion of "intellectual property" makes perfect sense; there are lots of limited and/or intangible forms of property. But mostly nobody but lawyers is familiar with these. To most people, the word "property" suggests something that is MINE, like the $5 bill in my wallet (which, alas, I spent).

Property suggests certain rights:

What about this "limited-time" property?

The property-rights view suggests that the limited-time model is a huge concession.

By comparison, the intellectual-commons view suggests that any rights to the creator are a consession.
   
Using the term "intellecual property" to describe ideas introduces BIASES.

What about "FAIR USE"? This is the notion that some copying is legitimate without any obligation to the creator. The original notion was to allow excerpting for quotes and reviews. The use should be relatively noncommercial (educational was best), and should not diminish the market for the original. We'll go into details later; the important case to be familiar with is the SCOTUS Sony v Universal Studios, the "Betamax" case, in which the court ruled 5-4 that VCR recording for the purpose of time-shifting did constitute fair use.

Summary: 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?

Intellectual Property and the Free Market

In a completely free market, I would sell my goods (chickens, say) for whatever I could get, and buy other things. Could shareable mp3 files exist in such a market? Once I sold one, the buyer could resell for next to nothing (or literally nothing). The supply, in classical terms, would be infinite, leading to a price of zero. Exactly as is happening in the real world.

This point is related to Stewart Brand's famous aphorism, "information wants to be free". The point isn't that information should be free, it's that, in the high-tech world, it ineluctably will be free, absent a strong regulatory system.

Nor is the point that newspapers and magazines should place their content online without charging for access; the second part of Brand's aphorism is "information also wants to be expensive"; that is, it is expensive to obtain and produce.

Here are some concepts for discussion; the italicized claims are meant as points for debate.

1. Any free market requires some sort of legal system to keep people from stealing my chickens rather than paying. Copyright is no different.

Is this true? If the legal system ensured only that all transactions were voluntary, we would still have a music price of zero. There is a big difference between forbidding involuntary transactions (that is, physical theft), and regulating voluntary ones. More generally, we could enforce any buyer or seller terms on the immediate exchange of every transaction, and still have a music price of zero. If the seller demanded that a buyer agree to a long-term license restriction, that would be beyond the scope of the immediate exchange.

[Note, while we are on the topic, that this is a good example of the importance of the legal groundrules on economic activity.]

Bottom line: debate point 1 is problematic. Copyright is different.

2. This argument shows that intellectual property can exist only in a regulated economy; that is, intellectual property only exists once the market rules are defined. Another example is patent terms: the value of a patent only exists once the length of time the patent lasts is established.

The argument, in other words, is that IP can exist only to the extent our markets have been "socialized" (ok, that is inflammatory) or at least "regulated" (for true Chicago-school economists, there is no difference). However, aren't all real markets subject to some degree of regulation? And aren't contemporary markets subject to a considerable degree of regulation?

Bottom line: debate point 2 is probably correct, but don't read too much into it.
3. Real markets are regulated in all kinds of ways, so this is not a meaningful distinction (compare with #2)

Intellectual Property can only exist once the market is created; physical property exists beforehand and Locke argued that physical property rights exist beforehand. But why should that be a meaningful distinction? Do natural rights matter? (It is certainly true that real markets are subject to many regulations, but the question is whether that is relevant to the alleged distinction between Intellectual and Lockean property.)

Bottom line: debate point 3 is reasonable, but don't underestimate the difference here.

4. The Tragedy of the Commons dooms IP.

That is, copyright is in our mutual long-term interest. But as meaningful enforcement is difficult, we have to each agree to abide by copyright law. At first we might each abide by our agreement, in the interests of maintaining the music economy. But it is always in our short-term best interest to ignore our promise and download privately; this makes the music industry like a "commons": supported by individual contributions (the agreement not to share files) but in each individual's best interest to "cheat". In all other situations studied, the commons are doomed.

Bottom line: time will tell on this one.

The Napster Defense

Napster was the original music-sharing website. Their legal defense was that they did no actual copying; they merely connected a user who wanted a song with a user who had it in their online library. In that sense, they were "only a search engine".

What do you think of that?

Napster eventually lost their case, but not quickly; they were then replaced by multiple different music-sharing services: kazaa, morpheus, limewire, gnutella, ....