Spring 2008 25-EP, room 711; 7:00-9:30 Thursdays Outline: normative ethics v descriptive ethics Sony v Universal, 1984 deontology v consequentialism relativism ================================================================ descriptive ethics: what do people actually do? 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? ================================================================ On page 5, the case "Sony v Betamax" is listed. That is a typo, the case is "Sony v Universal City Studios". (Plaintiff listed first; Sony lost at the Circuit Court level) Outcome: 5-4 decision that taping TV shows for timeshifting is "fair use", and if a technology has Substantial NonInfringing Uses (SNIUs), it cannot be penalized for infringing. ================================================================ p 28: "Jon Lech" is Jon Lech Johansen (author of deCSS) Also, Johansen apparently did not write (and definitely claimed not to have written) the actual decryption part. ================================================================ Copyright infringement: * 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 Is THIS what Eisner meant when he says "theft is theft"? Why do we have [civil] laws? * protection [criminal law] * justice * allows INVESTMENT as returns are PREDICTABLE Music stakeholders: "signed" musicians record companies "indie" (independent) musicians fans 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? ====================================================================== ====================================================================== Ethical theory (often inseparable from Political theory) 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. 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. 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] * 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. * min/max consequentialism: goal is to choose actions that minimize the harm to those affected most Example: taxes; everyone pays a share and social progress is thereby funded. * disinterested-person consequentialism * rule consequentialism: use consequences to formulate rules * "the ends justify the means" Famous examples: Compare justifications of lying Utilitarian: may be ok in some cases 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) ============ 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. 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. ============ How does religion figure into ethics? Lots of theological debate about whether even God is subject to moral law 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. ============ 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] Problems: * we don't really believe this * this *is* an absolute (non-relative) statement ====================================================================== ====================================================================== Apply to music file-sharing, pp 23-34 Stakeholders: fans now gain "signed" musicians lose "indie" musicians gain recording industry lose 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) or wives (since considerably later) (That's not strictly true; although well into the 20th century husbands had tremendous legal authority over their wives, and their wives' assets, spouses could never be sold.) ================== Signed v Indie musicians 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. Kantian Categorial Imperative: Am I willing to make the free-download rule a universal (categorical) one? What if it is my work at stake? pp 26-27: CD is better because: * consistent quality * "an official, completed object. It's satisfying" * concrete * album notes, photos * light & portable Most of this was written before iPods! 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? ======================================================================= ======================================================================= Eisner: he talks about pricing. Implicitly, movies have become cheaper since the rise of file sharing. Is there a problem here???? ================ Courtney Love rock singer, wife of late Kurt Cobain [Nirvana] (based on "The Problem with Music," by Steve Albini) essentially, musicians get diddlysquat. Record companies are thieves Worse, musicians DO NOT OWN THEIR COPYRIGHTS Unlike, say, book authors (usually) Does the Music Industry perform a useful function? Or is it ok to bypass them entirely by downloading tracks? In other words, is the fact that they're rich and powerful part of the reason it's ok not to pay? ======================================================================= Lessig , 1999 (law professor, represented Eldred in Eldred v Ashcroft, about constitutionality of Copyright Term Extension Act) 1. The laws we make to protect property reflect its nature Groundrules support free copy of digital files. Does this HAVE to be? darned good question! Copying is hard to ban. Recent rules ban *playback*, not copying, without a license token. Are theorists who say "information wants to be free" right? Information *is* easy to copy. Or are they blinded to what might be by what is? Stefik proposals: DRM system IP is "odd sort of bird" relative to other property **** "The law needs to protect [IP] only in order to create the incentive to produce" **** 2. Do we want a different "code"? Copyrights expire: economic reasons for a different code free speech intellectual commons 3. Fair Use doctrine DRM may not support this! We have choices to make! ================ musicview.com: GONE! dontbuycds.org: GOING GREAT! Oh, and check out darknoisetechnologies.com ================ Summary: copyright is a sort of governmental award, and it can be bought and sold, so in that sense is property. But if a copyright is a form of property, then it is a very limited form, and any analogies drawn between a copyright and personal property are very suspect. Fair Use is not an encroachment on ones copyright; it is a fundamental part of the deal. So is expiration. Furthermore, the public has a right to petition to DIMINISH the copyright holder's rights. There is no analogy with other forms of property; the public has rights too here. (Well, the public CAN act to diminish real (land) property rights, through easement, taxation, environmental constraints, access, zoning, etc, and maybe there are cases where personal property can be so reduced. But generally these cannot be done "after the fact" without severe complaints of injustice, and/or demands for "compensation".) John Perry Barlow: weird; do later? ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Forms of Intellectual Property recognized in the US: copyright, for creative works patent, for inventions special rules for industrial design patents trademarks trade secrets ===================================== Details of US Copyright law: Covers books, movies, audio recordings, paintings & drawings, live TV broadcasts, theatrical performances, etc. [bcasts covered 1976] Sound recordings were brought under Copyright in 1972. But coverage was retroactive, and now lasts until 2067. So there are NO public-domain sound recordings, and probably won't be in your lifetime, unless the creator put the recording there. 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") Recent _Da Vinci Code_ case: (actually filed in England, which has different laws): authors Leigh & Baigent of _Holy Blood, Holy Grail_ about Mary Magdalene can NOT sue for ideas used in _Da Vinci Code_. 1988: US signed Berne Convention treaty. 1989: passed law implementing Berne changes Since then, it is NOT necessary to register copyright or even to mark works eg "copyright 2007 Peter Dordal" [1989 law *may* have limited "statutory" damages to registered cases] Berne group became WIPO, World Intellectual Property Organization, a subsidiary of the UN 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 law: A judge will work very hard to find a way NOT to overrule a treaty. Five rights: reproduction derivative works distribution public performance public display Good-faith defense protects schools, libraries, archives, public bcasts limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. FAIR USE US-only. See below 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 1997 NET (No Electronic Theft) act: 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. mp3 file sharing had not yet become significant. ===================================== =====================================