Computer Ethics, Fall 2022

Thursdays 4:15-6:45

Class 8, Oct 20


Start reading Chapter 3 on Speech


Theories of Privacy (18 min) Transactions are the main thing, as they are at the root of the third-party doctrine.

Section 230 (subsequent cases; 50 min)

Goldsmith v Warhol

Oral arguments for the Goldsmith v Warhol Estate case are here:

The case is about how much "transformation" has to be done to someone else's photo for Fair Use to apply. The Second Circuit said this doesn't even matter (unless it's a lot); we have to look at the other factors.

Here's a relevant quote from the Cambpell (2 Live Crew) case about Pretty Woman:

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”

This is the "transformative" standard for art, so to speak: that the new version "adds something new, with a further purpose or different character". That is, for art, the purpose alone need not be different.

On the other hand, both Goldsmith and Warhol sold the image to magazines wanting a picture of Prince. As Justice Sotomayor put it, "why doesn't the fourth factor just destroy your defense in this case?"

Justice Kagan:

But, if you imagine Andy Warhol as a struggling young artist, who we didn't know anything about, and then you look at these two images, you might be tempted to say something like, well, I don't get it. All he did was take somebody else's photograph and put some color into it.

Justice Thomas:

let's say that I'm both a Prince fan, which I was in the '80s,....

Justice Jackson suggested that the word "purpose" in the law referred to how the work was used. For example, a picture of a heroic Lincoln and a picture of a depressed Lincoln might very well have the same purpose: to display to the public an image of Lincoln.

Then there's the Goldsmith side:

Petitioner's colloquial definition of the word "transformative" is too easy to manipulate. The act also gives creators and not copiers the right to make derivative works that transform the original into new ones with new meaning.  If Petitioner's test prevails, copyrights will be at the mercy of copycats. Anyone could turn Darth Vader into a hero or spin off "All in the Family" into "The Jeffersons" without paying the creators a dime.


And so that is all the Second Circuit had [as to why the Warhol version was transformative], was they had a district court opinion that went completely, this is a Warhol, and, oh, my God, it's a Warhol, so it's transformative by definition. And the Second Circuit said: No, no, we're not going to do that here. You're going to have to give me something more than this is a Warhol with a distinctive style.

Kanye buying Parler

Target and Data Mining and Pregnancy

SSN (brief)

Medical Privacy

Price Discrimination

Speech and Section 230