Ethics, Spring 2009 25EP Room 901 7:00-9:30 Thursdays Read: Chapter 4, sections 1-3 4.1: intro 4.2: law, major cases 4.3: DRM, DMCA, arguments about copying ========================== constitution ethical theory in depth IP stakeholders utilitarianism RIAA lawsuits ========================== US Constitution states (the "copyright clause") 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"? ========================== What does this say about the nature of our "right" to our works and inventions? Pretty clearly the writers of the constituton did NOT see this as a natural right. How can something be property, if it goes away? People ask this now, seriously, as if it should be obvious that copyright *should* be perpetual. "property" suggests all sorts of implications. But how can it 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: right to determine all forms of use right to legal enforcement right to decide how to dispose of property sell, buy, lease, inherit What about this "limited-time" property? 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. Property-rights view of ideas introduces BIASES. What about "FAIR USE": the notion that some copying is legit The original notion was to allow exerpting 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. ======================================================================= ======================================================================= normative ethics v descriptive ethics deontology v consequentialism relativism Application of this to music and movie file sharing. Copyright law ================================================================ 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? ====================================================================== ====================================================================== Ethical theory (often inseparable from Political & Justice theories) 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]: more modern deontologist consequentialism is wrong; identified "seven duties" Biggest problem for deontologists: what do we do when rules conflict? Abortion: duty to mother v duty to fetus Copyright: duty to copyright-holder v duty to society ============================================================= 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, because we WANT those 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. (This is often interpreted as "decide on society before you were born") 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] ========================== More on consequentialism: * 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. Aw, heck, here it is: Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? - William James * min/max consequentialism: goal is to choose actions that minimize the harm to those affected most (to minimize the worst case, ie to minimize the maximum) Example: taxes; everyone pays a share and social progress is thereby funded. * disinterested-person consequentialism To decide for or against a rule using consequentialist reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. * act consequentialism: consider consequences of each act separately * rule consequentialism: use consequences to formulate rules (generally fares better under critical analysis.) * "the ends justify the means" the classic case is the consequentialist argument that sometimes it's ok to lie (the means), because in those special cases (eg not hurting people's feelings, protecting the innocent) the ends are clearly an overall good. Famous examples: Compare justifications of lying Utilitarian: may be ok in some cases Act Util: *very* case by case: Lying to joe about the job interview: WRONG Lying to bob about his car: maybe Lying to mary about last saturday: sure! Rule Util: "Lying to friends" may be always wrong. 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 aspects as well) Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian) Most laws are largely utilitarian, though some aspects of free speech / freedom of religion make these "fundamental rights" in a deontological way. =============================================================== Some alternatives and special cases 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. [Not mentioned in Baase] 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. Locke's "natural rights" comes from this perspective. Liberties and claim rights: (Baase) Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples: right to life right to (physical) property freedom of speech Claim rights (positive rights): rest of us have to take measures to ENABLE your right. right to an attorney (compare liberty version of this) right to an education Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right. Basis for Property rights: John Locke [Baase, p 33] is copyright a PROPERTY right? "Natural" rights: special case of liberties (negative rights), like life & liberty These are fundamental obligations we have to one another. "Utilitarian" rights: rights that we grant each other for improved social function NOT necessarily the same as claim rights The Constitution places IP in the latter category. ============ Religion ======== How does religion figure into ethics? Lots of theological debate about whether even God is subject to moral law 10 commandments: very deontological Golden Rule: "do unto others as you would have them do unto you" [Matt 7:12] Closer to consequentialist than to deontological, but still different. Some people call the golden rule "reciprocity ethics" ============ 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. ============ Wrong v Harm: Not everything that is harmful is wrong. Example: business competition Not everything that is wrong is harmful: Hackers used to argue that it was ok to break into a computer system as long as you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently. ============ Law v Ethics (p 37) Laws: implement moral imperatives implement, enforce, and fund rights fund services establish conventions (eg Uniform Commercial Code) special 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] See Baase, p 32, under Natural Rights: One approach we might follow is to let people make their own decisions Problems: * we don't really believe this murder/genocide * this *is* an absolute (non-relative) statement, and as such is self-contradictory. ====================================================================== ====================================================================== Some references in Baase illustrating that "IP" is a special case p 199: When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. p 200: five copyright rights: 1. make copies 2. produce derivative works (except parodies) includes translations 3. distribution of copies 4. performance in public 5. display to the public p 201: Nicholas Negroponte: "Copyright law will disintegrate" founder, MIT Media Lab founder, One Laptop Per Child; goal: $100 laptop Pamela Samuelson: "[no they won't]... balanced solutions will be found" Cornell Law prof writes Legally Speaking column in Comm. ACM ============================================================ Suppose we DO agree that songs are a form of property. Does that automatically mean we agree on what THEFT is? A bit of thought makes it clear that the answer is NO: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here. What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use". ================================================================== ================================================================== Music stakeholders (list from before (simplified)) "signed" musicians record companies record stores independent musicians current fans future fans Apply deontological/utilitarian analysis to music file-sharing ============================================================== Stakeholders: "signed" musicians lose "indie" musicians gain recording industry lose stores lose current fans gain 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) 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. ====================== signed v indie musicians & all this utilitarian: which scheme is better for which type? deontological: do we owe signed musicians the right to decide distribution? do we owe indie musicians the right to an opportunity? Could we have *both*?? ====================== Why would people buy CDs? Some answers from ~2002: * consistent quality * "an official, completed object. It's satisfying" * concrete * album notes, photos * light & portable 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? ================================================================== ================================================================== Michael Eisner, CEO of Disney, testifying before Congress in June 2000: Theft is theft. Movies cost a lot music downloading is as bad as credit card theft Everyone has to play by infringement rules distributing a DVD is no different from stealing newspapers THEFT IS THEFT [creators are entitled to] FULL RIGHTS OF OWNERSHIP Disney believes in technology 5 rules: 1. legislative mandate for technological fixes 2. international protection 3. public education - many don't know it is wrong 4. use appropriate technological measures 5. appropriate pricing does free copying drive down prices? DISCUSSION: Do you agree with Mr Eisner? Conversly, does Disney engage in theft by overpricing DVDs? (cf Eisner's 5th rule) =================================== Napster: started June 1999 Lost in district court in 2000 Ninth Circuit appeals court examined case, granted an injunction allowing Napster to continue until the case was decided. They found that Napster *did* have Substantial Non-Infringing Uses. But they ruled against Napster in the end. Napster was ordered to remove infringing content, which they technologically simply could not do. Bottom line: Betamax precedent was rejected because, although SNIUs existed, napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it. However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously. Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers. Did that make it ok? Napster figured the RIAA would never bother with individual lawsuits against users. Were they right? Are such suits justified? What evidence is needed for subpoena? Note that signed and indie musicians fare VERY differently under the napster model! Also note the long-term implications for "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? Is this a case of "harm" being unequal to "wrong"? Question: is it ethical to cause harm? What about economic harm? ============================================================= Now back to Eisner: can the FILM industry survive on the napster model? Here we get into ECONOMICS: it is pretty clear that the answer is NO. Why? What about income from movie-theater showings? Other ethics/economics questions: what is the FAIR amount of money to pay for something? Can people be EXPLOITED by receiving too low an income? Is HARM to other people ever justified, aside from ECONOMIC HARM? Are their limits to justifable ECONOMIC harm? ===================================================================== ===================================================================== RIAA Lawsuits File-sharing software works by sharing *your* files too; advertising your music folder(s) online when you join the service. Investigators look for these, by participating in online file-sharing networks. They record your IP address and the listed songs; they also generally download a few of the songs. Different software works different ways. Kazaa shows a "share" folder. bittorrent shows your connection to a torrent "tracker" site, but there's no notion of "shared files". Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They issue a subpoena to your ISP, asking for your name, and, if relevant, the MAC address of your computer. These subpoenas are almost always in a group, asking for multiple customer names. One legal criticism of RIAA lawsuits has been over joining together of multiple individuals in one ISP lawsuit. Normally you can't do that unless you believe the cases are related. Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records *without* a lawsuit, under a provision of the DMCA. But then a court ruled that this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon] The ISP usually complies, usually without contacting you. However, it is possible for either the ISP or you (if the ISP contacts you) to file in court to "quash" the subpoena. You do need a reason for that, however. It *is* possible to file to quash without giving up your identity, but you have to hire a lawyer. Step 2: the RIAA now sends you a settlement letter, offering you a chance to settle before the lawsuit is filed. The settlement offer is usually something like $500-1000 per track. The RIAA may or may not distinguish between tracks that showed up in your directory, and/or tracks that they actually downloaded. You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3. Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense. Step 3: The RIAA files a lawsuit. They will ask for a forensic copy of your hard drives (they may ask for the hard drives themselves, but you're under no obligation to give them up). An independent forensic examiner will copy the drive, and determine whether or not the songs are there. (The MAC addrss from Step 1 plays a role here in determining whether they've got the right computer; so does other identifying information about KaZaa,etc.) The cost of settlement goes up a little at this point. =================================================== Some defenses that have NOT helped: * the ISP is your school, and releasing school records is illegal. (releasing names is *not* illegal) * you didn't know it was a crime Yes you did. Come *on*. But it doesn't matter. * you already owned the tracks on CD. See the Gonzalez case; www.eff.org/wp/riaa-v-people-years-later Copyright law allows you to make a backup copy of what you bought; there is no provision for receiving your backup copy from someone else. ====================================================== Some valid defenses in court: The problem with all these is that you don't want to be going to court, and the RIAA does not have to consider these when settling. * It wasn't your computer Typically this is due to the ISP's misidentification of you. Sometimes it's because someone jacked your wi-fi. In this case the forensic examination of your computer *might* help. * Your roommate used your computer Your problem here is proving that this is the case. * Your kids used your computer There is a very limited legal doctrine of parental responsibility. Originally, the RIAA did sue parents, or made them settlement offers. More recently, after several losses, the RIAA has been suing the minors themselves. This is a little tricky; the court must appoint an attorney, often at the RIAA's expense. Also, in Capitol_v_Foster, Deborah Foster eventually won $68,000 in legal fees from the RIAA. Foster's daughter did the downloading. * You didn't actually download any songs What the RIAA has, as evidence, isn't evidence of downloading. All they have is evidence that you "offered" songs for downloading. At this point it might matter a great deal whether the RIAA actually tried downloading anything from your computer. Jammie Thomas had her case go to trial (the first and so far only RIAA case to reach a jury trial) and she lost and was ordered to pay $220,000. But Judge Michael Davis later rethought this issue, rejected the "offered for distribution" theory, and ordered a new trial. Some defenses where the "jury" is still out (not that a real jury will ever hear these): * the settlement offer is disproportionately high See current cases (eg SONY BMG Music v. Tenenbaum) for more. ======== It's really hard to generate much sympathy for the RIAA position. Consider, though, the theory that file sharing is a violation of their copyrights, and that such individual lawsuits are the ONLY way to proceed. What's unfair about this process? What is fixable, within the constraints of the US legal system? Some things to think about: * statuary damages for infringement * rules for defendants who cannot afford an attorney * rules of evidence =======================================================================