Ethics, Week 3, Jan 29, 2009 Read: 4.1-4.6 (4.1-4.3 already assigned; skip 4.7 on patents for now) 2.1, 2.2 on privacy Central issue: what do we owe content creators? RIAA paper Copyright rules details History Fair Use cases DMCA ==================================== General copyright law rules: Different categories may be (and usually are) subject to different rules. See copyright.gov/title17 for (voluminous) examples. Rules for theatrical performances are tricky: these are ephemeral performances! Videotaping a performance may violate actors' rights. Usual issue is rights of the DIRECTOR. 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". Gaak!!) Note that if you buy a copy, you have right of private performance (so to speak; there's no special recognition of it), but not public. 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. Fair Use: Goes back to constitution: public has some rights to copyrighted material. Limited right of copying for reviews, etc Good-faith defense protects schools, libraries, archives, public bcasts; limits statutory damages to $200 IF infringement was "reasonably believed" to be fair use. In other cases, statutory damages *may* be reduced to $200 if the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright". Statutory damages are a flat amount you can ask for at trial instead of actual damages. Part of the theory is that by asking for statutory damages, you do not have to prove the number of copies made. Title 17 United States Code, Chapter 5, Section 504, Paragraph (c) Statutory Damages. — (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. =========================================================================== =========================================================================== Laws (highlights only): 1790 copyright act: protected books and maps, for 17 years. "The earth belongs in usufruct to the living": Thomas Jefferson 1909 copyright act: copy has to be in a form that can be seen and read visually. Even back then this was a problem: piano-roll case (Piano rolls were *the* medium of recorded music back then.) 1972: Sound recordings were brought under Copyright. But coverage was retroactive, and now lasts until 2067. There are NO recordings in the public domain, unless the copyright holder has placed them there. 1976 & 1980 copyright acts: mostly brings copyright up to date 1976 act formally introduces doctrine of Fair Use, and formally covers television broadcasts. 1988: US signed Berne Convention 1989 Berne Convention Implementation Act: brings US into conformance with Berne convention: most famous for no longer requiring copyright notice on works. [Berne Convention has since become WIPO: World Intellectual Property Organization, a U.N. subsidiary. 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 generally AGAINST tight IP law 1st world is generally FOR it (at least governments are) Brief comment on treaty-based law: A judge may work harder to find a way not to overrule a treaty, than to find a way not to overrule an ordinary law. 1996: Communications Decency Act: not really about copyright indecency v obscenity Section 230 1997: No Electronic Theft act: David LaMacchia case 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. It criminalizes NONcommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owner could still go after you). mp3 file sharing had not yet become significant. 1998: Digital Millenium Copyright Act the two best-known provisions: * anticircumvention prohibition * safe-harbor / takedown 2005: recording movies in a theater is now a felony. =========================================================================== =========================================================================== Fair Use Legal basis for fair use One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Question: does the First Amendment imply some sort of fair-use right to quote other works? More often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution. Standard example is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality. Item 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad. PARODIES are also often considered as an Item 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. (Maybe not; see MAD case) parodies: South Park (almost any episode) Weird Al www.xkcd.com/c78.html Bored of the Rings wondermark.com Generally the creator of a parody does NOT need permission of the original author. Item 2 refers to whether the work is nonfiction or fiction, etc Fundamental news facts (eg images from the Zapruder film of the Kennedy assassination) have been ruled "fair use" Item 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. Music sampling. Item 4: This is the big one. See Sony v Universal. ============================================================================== ============================================================================= ======================================================================== Some Famous Copyright Cases: Wikipedia famous copyright cases: en.wikipedia.org/wiki/List_of_leading_legal_cases_in_copyright_law 1964: Irving Berlin et al. v. E.C. Publications, Inc.: "Mad Magazine case" Mad Magazine published "sung-to-the-tune-of" alternative lyrics for popular songs. District court ruled in MAD's favor on 23 of 25 songs. 2nd Federal Circuit decided in MAD's favor on all 25 songs. ======================= Sony v Universal City Studios, 1984, above District court found for Sony Appellate court (9th circuit) found for Universal Studios Supreme court, 5-4 decision, found for Sony The "Betamax" case Sometimes claimed to be a Fair-Use case Paragraph 12: The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use servedthe public interest in increasing access to television programming, an interest that "is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for ‘plaintiff’s original work.‘" introduced doctrine of Substantial Non-Infringing Uses This case apparently legalized taping of TV programs for later viewing (but NOT archiving): Universal did not show how it was damaged. Introduced doctrine of SNIU, Substantial Non-Infringing Uses a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. The precise role of "Fair Use" in the court's reasoning is not as clear as it might be, but this certainly DID play a role. SCOTUS does NOT really spell out "Fair Use" 4-part analysis, though they hint at it in the section "Unauthorized Time-Shifting" It was the District Court that came to that conclusion. Paragraph 54: "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home" Fred Rogers testified in favor of Sony Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented. ======================== 1985 Dowling v United States, 473 U.S. 207 Supreme Court Dowling ran a bootleg record company, as an Elvis fan. SCOTUS agreed with his claim that what he did was not "theft" in the sense of "interstate transportation of stolen property", or fraud in the sense of "mail fraud". (Copyright-infringement conviction still stood) 1991, Feist Publications v Rural Telephone Service Supreme Court (Feist v Rural) (1991, Justice O'Connor) phone book is NOT copyrightable. 1991: Basic Books, Inc. v. Kinko's Graphics Corporation Federal District Court, NY just because it's been published in a book doesn't mean you can use it freely in teaching a course. 1999: Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. "I have a dream" speech is *not* in the public domain. The issue was that the speech was delivered in 1963, before the 1989 Berne Convention Implementation Act. The copyright was not registered until AFTER the speech. Technical issue: was giving the speech "general" or "limited" publication. 2000: UMG v MP3.com Federal District Court, NY Implicitly rules that you can't download copies even if you already own a copy, but that might not have been the central issue. ====== Reverse engineering: 1992 Sega Enterprises v Accolade: Accolade made copies of the Sega ROM and reverse-engineered it. Accolade won. Copies of Sega's program were not being distributed; Accolade's only "harm" to Sega was as competitor. Atari Games v Nintendo: also in 1992; another reverse-engineering case; also won by the defendant 2000 Sony Computer v Connectix: Connectix copied Sony BIOS and reengineered it so that Sony Playstation games could be played on a computer. ====== 2005: MGM v Grokster Grokster *could* be sued for copyright *inducement* Goal: overturn Sony v Universal. More details below 2006-07 _Da Vinci Code_ case: (actually filed in England, which has different laws): authors Leigh & Baigent of _Holy Blood, Holy Grail_ lost their suit against Dan Brown. They had introduced the theory that Mary Magdalene was the wife of Jesus and that Mary and Jesus have living heirs. This was a major plot element used in _Da Vinci Code_. Did Dan Brown violate copyright? ======================================================================== ======================================================================== DMCA Extends copyright to boat hulls. Who paid for *that*? Implements WIPO treaty PROVIDES LEGAL SUPPORT FOR COPY PROTECTION Provides (severe) penalties for even SPEAKING about circumvention (eg supplying online explanations); called 'anti-circumvention measures' [We will return to these later under the topic "rights of computer owners", and also "speech"] Provides LIMITED exceptions for those doing "legitimate" security research. Mandates macrovision-brand copyprotection for VHS tape Allows petitioning the Library of Congress to approve exceptions to the anti-circumvention rules; in cases where these have seriously impacted *non-infringing* use. Examples: when equipment to support the anti-circumvention measure (eg dongle, certain disk drive, certain hardware platform) is obsolete. Dmitry Sklyarov was arrested in 2001 after his DEFCON presentation related to breaking Adobe's e-book anticircumvention measures. He was held in prison for three weeks, and then required to remain in the US for four months. His Russian employer, Elcomsoft, sold software that allowed users to bypass Adobe's copy protection on e-books. Sklyarov was charged for this. Adobe issued a press release stating that "the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry." ============== DMCA Contains OCILLA: Online Copyright Infringement Liability Limitation Act protects ISPs from claims when users put up infringing material. Establishes legal framework for "takedown notice" Also for "putback notice", but there are more stringent rules for the latter. Who is Loyola's Takedown agent? Summary of Takedown/Putback process Takedown request must have * description of infringing material * good-faith claim that use is not legal * sworn statement requestor is authorized to act by copyright holder ISP must take down material "promptly", and notify the user. Putback: * description of material * good-faith claim use *is* legal, subject to perjury * acknowledgement of court jurisdiction ISP then can put material back after 10 business days (to give original complainant time to file a lawsuit). If suit is filed, material stays down. Does NOT protect end-user in any way; in fact, it puts burden on end-user. Does protect ISP Also specifies rules about subpoenas to ISPs for end-user identity Why do you think blackboard is so popular? Hint: not because it's easy to use. Cases related to DMCA/OCILLA: Youtube was sued by Warner; negotiations are continuing but youtube has *apparently* agreed to the principle of some kind of cut of revenues. In December 2008 [?], Warner was back to demanding that its music videos not be available. (I'm not sure of the dates or anything else) Viacom v Youtube, 2007 This case has not yet come to trial. Google (Youtube's owner) has cited OCILLA in its defense; Viacom is still trying to claim statutory damages. Question: does Youtube try to "induce" users to upload protected stuff? This remains a major unsettled issue; see MGM v Grokster (below) ======================================================================== YouTube: is it an example of "good" sharing or "bad" sharing?? See Baase pp 219-222 =========================================================================== =========================================================================== MGM v Grokster: Introduced doctrine of copyright inducement See w2.eff.org/IP/P2P/p2p_copyright_wp.php 1. Inducement: "[O]ne 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, is liable for the resulting acts of infringement by third parties." 2. Contributory infringement. Contributory infringement is similar to "aiding and abetting" liability: one who knowingly contributes to another's infringement may be held accountable. 3. Vicarious liability. Vicarious liability is derived from the same legal principle that holds an employer responsible for the actions of its employees. Applies to ISPs ??? "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. ================================================================================ ======================================================================== DRM: Baase p 216-218 Basic examples privacy issue backups issue iPod x 4 issue (Apple DRM, microsoft DRM, sony DRM, ???) linux Some issues: * non-portable (to new computers, OS's, or portable devices) * limited lifetime * in some forms, DRM can lead to identification of users (eg pay-per-use forms of DRM) ======================================================================== Ethical arguments about copying: Baase p 228 * I can't afford CDs * It's ok to take from large, wealthy corporations Baase dismisses this. Is there any underlying justification? * I wouldn't be buying it regardless * I have a right to give gifts (of tracks) to my friends * personal file-sharing is so small as to be inconsequential. * Everyone does it. * I'd be happy to get permission to use zzzz, but don't know where. "Eyes on the Prize" problem: en.wikipedia.org/wiki/Eyes_on_the_Prize * I'm posting as a public service * I'm posting to address some important social goal, _not_ for sharing per se. Legally, this is called "transformative" use * This is Fair Use. ======== Ethics of copyright: dependent on creator's business model?? Isn't this EXTREMELY utilitarian? Bottom line: *if* we want the old rules to continue, we need to find ways to ensure return on investment for creators of music, movies, and books. If. And such ways to ensure ROI (Return On Investment, a standard B-school acronym) can be legal, technical (eg DRM), or social. Again, how did we get into a situation where our ethical decision making involved analysis of ROI? ======================================================================== What about pay-per-use, besides the issue of anonymity (which can perhaps be fixed)?? Does this make sense? ======================================================================== 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: 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? ============ Youtube: how are they different? ================================== ==============================================================================