Ethics Week 5 - Feb 16


Read: §2.1, 2.2 of Baase on privacy
Read http://cs.luc.edu/pld/ethics/garfinkel_RFID.pdf on privacy


cases
DMCA
ASCAP
Transformative Use
Dozier

Privacy
From whom?
AOL leak
RFID
SCOTUS cases
databases
search histories
theories of privacy


ACM talk

Intellectual Property Law in the Internet Age

Wed, Feb 17, 6:30, Beane Hall

Kelly Kocinski, Attorney

Who owns your content on Facebook, Twitter, YouTube, LinkedIn?

How do you protect your work from being stolen? What protections do you have if you are working to develop content that someone else has provided? This lecture and Q & A is aimed at addressing these and other online issues and offering advice on how to protect what  you have created for yourself and others and placed online or otherwise out in the world. 

Kelly will discuss the state of copyright, trademark, and patent law, how the law is trying to catch up to the technological and content-based advancements of the online world, and common misconceptions about the laws as they exist today. She will also discuss how those working online  — whether on social media sites, blogs, or web development — and with technology in general can protect their content and insulate themselves from liability. Finally, there will be a group discussion and Q&A to specifically address the concerns of the audience.

6:30 pm (refreshments start ~6:00), Beane Hall (LT 13th floor)

Reverse engineering

Many reverse-engineering cases are based on copyright.

Sega Enterprises v Accolade, 1992: 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, 1992: another reverse-engineering case; also won by the defendant

Sony Computer v Connectix, 2000: Connectix copied Sony BIOS and reengineered it so that Sony Playstation games could be played on a computer.

Bottom line: the courts have had a pretty strong history of not allowing copyrights to interfere with reverse engineering. Note that these cases are about pre-DMCA copyright law (the DMCA officially acknowledges a right to reverse engineering, §1201(f)), and are also not about license claims made by the plaintiff (that is, that the license terms of the software forbid reverse-engineering).

DMCA, 1999

Extends copyright to boat hulls. Who paid for that? Section 1301.
 
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'

See §1201(a)(1)(A), and also §1201(a)(2):
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
 
    [We will return to these later under the topic "rights of computer owners", and also "speech"]
     
Provides LIMITED exceptions for those doing "legitimate" encryption (not "security") research. See Section 1201g. Note in particular 1201(g)(2)(C) (making a good-faith effort to obtain authorization), and 1201(g)(3): Factors in determining exemption (especially (B)).
 
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 on July 16, 2001 after his DEFCON presentation related to breaking Adobe's e-book anticircumvention measures. He was held in prison for three weeks (until August 6), and then required to remain in the US until December 13, 2001.

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."

On December 17, 2002, a Federal jury found Elcomsoft not guilty.

Note that at no time did the US government allege that any of Sklyarov's or Elcomsoft's activities were carried out within the US. This is not an uncommon situation regarding jurisdiction.


 
DMCA Contains OCILLA: Online Copyright Infringement Liability Limitation Act
This act protects ISPs from claims when users put up infringing material. It establishes the legal framework for "takedown notices". Also for "putback notices", but there are more stringent rules for the latter.
 
Who is Loyola's Takedown agent? See the small "Copyright & Disclaimer 2009" link at the bottom of the main luc.edu page, leading to http://luc.edu/info/copyright_disclaimer_2008.shtml, and then to a mailto: link to "our DMCA agent".
 
Summary of Takedown/Putback process
Takedown request must have 
The ISP must take down material "promptly", and notify the user. The user can respond with a putback request, which must contain the following:
The ISP then can put material back after 10 business days (to give original complainant time to file a lawsuit). If a suit is filed, the material stays down. If a suit is filed at that time or later, it will be filed against the user and not the ISP.
    
OCILLA does NOT protect end-user in any way; in fact, it puts a burden on the end-user. It does protect the ISP
    
OCILLA also specifies rules about subpoenas to ISPs for end-user identity; these were what the RIAA first used.
 
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). On August 19, 2009, the parties announced a settlement that would allow Warner to post lots of their clips on Youtube, subject to the following:
See http://finance.yahoo.com/news/Time-Warner-and-YouTube-Reach-iw-2585532384.html?x=0&.v=1.

How does http://www.vidtomp3.com affect this issue? Does it matter where vid2mp3.com is? Are they the bad guys here? Should we even be discussing vidtomp3.com?

Viacom v Youtube, filed March 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.

Here's a July 2008 BusinessWeek article on the case:
http://www.businessweek.com/technology/content/jul2008/tc2008073_435740.htm.

Here's a January 2009 blog on the case:
http://copyrightsandcampaigns.blogspot.com/2009/01/viacom-v-youtube-viacoms-anti-piracy.html.

Here's a March 2009 blog, addressing (among other things) the fact that Viacom's discovery motions involve in excess of 12 terabytes of data: http://www.digitalmedialawyerblog.com/2009/03/controlling_discovery_in_digit.html.

What do you think of the OCILLA defense here? One point that has been made is that, while OCILLA might block a financial claim, it might not block a Viacom request for a court restraining order that Youtube desist completely.


YouTube: is it an example of "good" sharing or "bad" sharing??

See Baase pp 219-222

 



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: http://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?



Amazon has now scanned in most of the books they sell, and offers full-text search of the book contents. This is intended as providing an online equivalent of browsing in a physical bookstore. They apparently did not get a lot of publisher permissions to do this.

Apparently, however, no major lawsuit has ever been filed!

Note that what Amazon has done arguably earns them ZERO dmca shield: they've actively scanned the books, and keep the images on their servers.

Clearly, "effect on the market" must be presumed POSITIVE. However, see http://www.authorslawyer.com/c-amazon.shtml.

ASCAP

How music copyrights are "supposed" to work: ASCAP (the American Society of Composers, Authors, & Publishers). See ascap.com.
 
ASCAP: collects on behalf of all members, = original songwriters.
 
To perform, you need a license from ASCAP, BMI, & third one (SESAC?). See ascap.com/licensing. Even if you write your own songs and perform only them, you still may be asked to show you have these licenses! While that sounds appalling to some, it's based on the not-implausible idea that the nightclub/venue where you play is the entity to actually pay the fees, and they have no guarantee you won't whip out an old Beatles song. [Richard Hayes Phillips, a musician who plays only his own and traditional material, did apparently beat BMI here. But not without a prolonged fight.]
 
Blanket performance licenses are generally affordable, though not negligible.

Generally ASCAP licenses do not allow:
That is, a university with regular chamber-music concerts (not covered by copyright) must pay ASCAP just as if these were copyrighted music.
 
You need a license to play recorded music at public places, too.  You do not get this right automatically when you buy a CD. Nor does purchasing sheet music provide you with any performance right.
 
ASCAP collects your money, keeps about 12%, and sends the rest off to its members. At one time this was in proportion to their radio play, which meant that if you play music no longer found on the radio, the original songwriters will get nothing. The rules have changed, however; now, ASCAP licensees have to supply information about what was played in order to ensure proper crediting.
 
ASCAP and BMI continue to support the idea of a strict difference between public and private listening. While there are grey areas here, it is hard to see that technology or file-sharing has contributed any new ones.

They are very concerned about web radio, and have had reasonable success in making it unaffordable for any but commercial stations with traditional formats.

TRANSFORMATIVE use

This describes copying where the "purpose .. of the use" (factor 1) is wholly different from the purpose of the original. Typically it may be important that the new use offer something to the public that was otherwise unavailable.

Parodies are usually considered transformative use.

Another example: from Diebold v Online Policy Group, & some Swarthmore students: (Actually, they were suing Diebold; the students had posted some internal Diebold memos, and Diebold was wildly filing DMCA takedown notices. The students, and the EFF, felt these were an abuse of the DMCA process.)

From the judge's opinion:
Finally, Plaintiffs' ... use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.

The Kelly and Perfect 10 cases below address this doctrine of "transformative". We'll return to this under "Free Speech"

Kelly and Perfect 10

Baase p 232-233:
    Kelly v Arriba Soft: 2002
    Perfect 10 v Google: 2006 -- ??

Kelly was a photographer incensed that Arriba Soft's "ditto.com" search engine was displaying thumbnails of his images. (There still is a ditto.com, but I have no idea whether it is connected to the original one.) The 9th Circuit ruled thumbnails were fair use, but not links to full-sized images. They later reversed that last point.
  
Four-factor analysis:
Purpose and Character:     use is transformative
Nature of work:                 creative work on internet; "slightly in favor of Kelly"
Amount & Substantiality: irrelevant; whole image must be copied
Effect on market: The court found no harm to Kelly's market; in fact, by helping people find Kelly's images they might help him. Use of thumbnails weighed heavily here: they aren't nearly as attractive as originals.
   

Now to the Perfect 10 case. Perfect 10 sold nude images; they claimed to have a business plan to sell thumbnail images to cellphone users.

Question: does this undermine the thumbnail analysis in Kelly v Arriba Soft?

This question goes pretty much to the heart of Google's ability to provide image searching.

images.google.com is an image-based search engine; it frames full-sized images, and caches thumbnails.

P10's images came up on google only when some third party posted them (at some third-party site), apparently without authorization.

District court:

The District Court ruled that links were ok, but thumbnails were not. More precisely, the court granted an injunction against the thumbnails, but not against the links. The case is still not decided completely (and probably won't be).

Wikipedia documents the District Court ruling in http://en.wikipedia.org/wiki/Perfect_10_v._Google_Inc.
   
Judge Howard Matz (emphasis added):

The first, second, and fourth fair use factors weigh slightly in favor of P10. The third weighs in neither party’s favor. Accordingly, the Court concludes that Google’s creation of thumbnails of P10’s copyrighted full-size images, and the subsequent display of those thumbnails as Google Image Search results, likely do not fall within the fair use exception. The Court reaches this conclusion despite the enormous public benefit that search engines such as Google provide. Although the Court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of the four fair use factors.

Note that Judge Matz does not believe that value to the public has priority over the fair-use factors.
 

Ninth Circuit

Ninth Circuit then reversed this: all of it is likely enough (as of 2008) fair use that P10 loses their injunction!!
Their preliminary decision at http://webpages.cs.luc.edu/~pld/ethics/Perfect10vGoogle9thCir12-2007.pdf.

The bottom line was that google's use was TRANSFORMATIVE.

Google might still be liable for contributory infringement. However, it appears that P10 has mostly abandoned the case.

Appeals court ruling points:
1. Google DMCA defense
2. P10's "display right" and "distribution right" are at issue.
3. [server test: whose server are the images really on?]

From the preliminary decision:
Applying the server test, the district court concluded that Perfect 10 was likely to succeed in its claim that Google’s thumbnails constituted direct infringement but was unlikely to succeed in its claim that Google’s in-line linking to full-size infringing images constituted a direct infringement. Id. at 84345. As explained below, because this analysis comports with the language of the Copyright Act, we agree with the district court’s resolution of both these issues. [15458 (15), last ¶]

Google isn't doing it:
[6] Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen.[15460 (17)]

Contributory infringement is not at issue.
Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images “available” violates the copyright owner’s distribution right. [15463 (20)]
   
Isn't this "making available" a core issue for file sharers?

At this point the appeals court turns to Google's Fair Use defense
       
In applying the fair use analysis in this case, we are guided by Kelly v. Arriba Soft Corp., ... In Kelly, a photographer brought a direct infringement claim against Arriba, the operator of an Internet search engine. ... We held that Arriba’s use of thumbnail images was a fair use primarily based on the transformative nature of a search engine and its benefit to the public. Id. at 818-22. We also concluded that Arriba’s use of the thumbnail images did not harm the photographer’s market for his image. [15466 (23)]

Recall the District Court judge's reluctance to put much stock in "benefit to the public"

Purpose and Character: Again, use is transformative. Very much so.  Just what is this??
District Court: this was diminished, in terms of Google's use of thumbnails, by P10's plan to sell thumbnails. Also, google's use is commercial.
     
9th Circuit: "In conducting our case-specific analysis of fair use in light of the purposes of copyright,": this is an explicit acknowledgement of the Copyright Clause. [15470 (27), ¶ starting in middle of page]

Bottom line: Purpose&Character goes from DC's "slightly in favor of P10" to Ninth's "heavily in favor of Google"

Also note, same paragraph:
The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.

One of the cases cited as evidence of this directive is Sony. Another is the 1993 Campbell case (about a 2 Live Crew parody of the Roy Orbison song Pretty Woman), in which the Supreme Court stated that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use". [15471 (28)]. (See http://supreme.justia.com/us/510/569/case.html. A major element of the Campbell case was that the Supreme Court backed away from the idea that commercial use would seldom qualify as "Fair use"; compare this with the earlier Sony quote "although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,....")

Also:  
we note the importance of analyzing fair use flexibly in light of new circumstances [15471 (28)]


   
Nature of work: no change; still "slightly in favor of Kelly". Part of the "slightly" was that the images were already published.

Amount & Substantiality: irrelevant; whole image must be copied; see [15473 (30)]

Effect on market: P10 did not prove their market for thumbnail images was harmed. So this didn't count. But how would they ever do that?? More precisely, "the district court did not find that any downloads for mobile phone use had taken place." [15470 (27), last line of page]

Whoa! Is that last issue really fair? Did the DC even consider that point?

More at [15474 (31)], end of 1st and 2nd paragraphs


We conclude that Google is likely to succeed in proving its fair use defense and, accordingly, we vacate the preliminary injunction regarding Google’s use of thumbnail images."

Note how the appellate court sort of finessed the "effect on the market" issue.
 
Another option: why were P10's images ever found? Because users uploaded them illegally. There is another path here: to allow google to provide thumbnails and links only so long as the originals are present. Then, P10 can go after the originals.

An interesting question: if P10 had been selling something more socially acceptable than soft-core pornography, might this decision have gone the other way? There's an old legal saying that "bad cases make bad law"; is this an example?

 
 
Dozier Internet Law, http://www.cybertriallawyer.com


1. Lots of solid mainstream copyright cases:
    architectural designs
    jewelry designs
    advertising work (sitforthecure.com)
    stolen websites for:
        gamers sites
        physicians
        small businesses
         
2. Their AMAZING user agreement:
    http://dozierinternetlaw.cybertriallawyer.com

Where are they coming from?
  
3. Dozier Internet Law and Sue Scheff

Sue Scheff was a client of Dozier Internet Law, which we looked at last week. She won an $11.3 million dollar verdict in her internet-defamation case; she later wrote a book Google Bomb. The defendant was Carey Bock of Louisiana.

But see http://www.usatoday.com/tech/news/2006-10-10-internet-defamation-case_x.htm. It turns out Ms Bock couldn't afford an attorney, as she was at the time of the case a displaced person due to Hurricane Katrina, and she did not appear in the case at all.

So we don't really know what happened. However, it is clear that at this point Ms Scheff has become a master at reversing being google-bombed; if you google for her name, her multiple blogs touting her book will likely lead the list.


Kindle case

see:
    http://online.wsj.com/article/SB123419309890963869.html
    http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au
    http://mbyerly.blogspot.com/2009/02/authors-guild-versus-amazon-kindle-2.html

The kindle is intended primarily for letting people read e-books. However, it also has a feature to read the book to you, using a synthesized voice. This potentially affects the audiobook market.

The Authors Guild has protested vehemently. They may or may not have filed a lawsuit against Amazon.

pro-kindle arguments:

anti-kindle arguments


Privacy

What is privacy all about? Baase (p 45) says it consists of
Are these all? Note that Baase put control of information as #2; I moved it to #1.

In some sense the second one is really a different category: the need to get away from others. A technological issue here is the prevalence of phones, blackberries, and computers and the difficulty of getting away from work.

The third one is to some degree a subset of the first: who gathers information about us, and how is it shared? Another aspect of the third one is freedom from GOVERNMENTAL spying. Privacy from the government is a major part of Civil Liberties.

Privacy is largely about our sense of control of who knows what about us. We willingly put info onto facebook, and are alarmed only when someone reads it who we did not anticipate.

Privacy from:
Sometimes, when we try to argue for our privacy, we get asked what do you have to hide? Is this fair?

On the other hand, should we care at all about privacy? Or is it just irrelevant?

Strange history: once upon a time we were mostly concerned about privacy from the government, not from private commercial interests.

What do computers have to do with privacy?
Old reason: they make it possible to store (and share) so much more data
Newer reasons: 
 
Baase, p 45: Communist East-German secret police Stasi, and non-computerized privacy invasion

Fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

Baase p 47: computers "make it easy to produce detailed profiles of our personal characteristics, relationships, activities, opinions, and habits"

Maybe also of what sales pitches we're likely to respond to??
 
Some non-governmental privacy issues:

 
~1990, a big privacy issue was Caller ID. Whose privacy was at stake?
 
Facebook and MySpace have made us our own worst privacy leakers.

Facebook and college admissions, employment, any mixed recreational & professional use


Some things we may want to keep private:
In keeping these sorts of things private, are we hiding something?


Why do we care about privacy? Is it true that we wouldn't care if we had nothing to hide? What about those "minor transgressions"  on the list? Are they really minor?

Or is is true that "we live 'in a nation whose reams of regulations make almost everyone guilty of some violation at some point'" [Baase p 69]

Once upon a time (in the 1970's) there was some social (and judicial) consensus that private recreational drug use was reasonably well protected: police had to have some specific evidence that you were lighting up, before they could investigate. Now, police are much more free to use aggressive tactics (eg drug-sniffing dogs without a warrant, though they can't use thermal imaging without a warrant).

Is this a privacy issue?

On page 47, Baase quotes Edward J Bloustein as saying that a person who is deprived of privacy is "deprived of his individuality and human dignity". Dignity? maybe. Individuality? Is there some truth here? Or is this overblown?

On page 67, Baase quotes Justice William O. Douglas as saying, in 1968,

In a sense a person is defined by the checks he writes. By examining them agents get to know his doctors, lawyers, creditors, political allies, social connections, religious affiliation, educational interests, the papers and magazines he reads, and so on ad infinitum.

Nowadays we would add credit-card records. Is Douglas's position true?

Privacy from the government

This tends not to be quite as much a COMPUTING issue, though facial recognition might be an exception. "Matching" was an exception once upon a time. Interception of electronic communications generally fits into this category; the government has tried hard to make sure that new modes of communication do not receive the same protections as older modes. They have not been entirely successful.
   
To large extent, we'll deal with this one later.

One of the biggest issues with government data collection is whether the government can collect data on everyone, or whether they must have some degree of "probable cause" to begin data collection. On p 73 of Baase there is a paragraph about how the California Department of Transportation photographed vehicles in a certain area and then looked up the registered owners and asked them to participate in a survey on highway development in that area. Why might that be a problem?

Canadian position: government must have a "demonstrable need for each piece of personal information collected".
   

Commercial data, based on transaction history
    Primary use is some sort of marketing

Other data
    legal, workplace, medical, etc
    Traditional "paper" data;
    The computerization issue is easy/universal access to such data
   
personal
    facebook, etc
     

Some data collection that we might not even be aware of: