Computer Ethics Paper 1
Due: Friday, Feb 15
You are to pick one of the topics below. Both topics
relate to the impact of copyright on what might be seen as otherwise legitimate
activity. In both topics, numerous questions are posed. These are included
only as suggestions, to help you get started. You
do not have to answer them all!
Topic option 1: Copyright-related Internet Regulation
Periodically there are attempts to regulate the Internet in ways intended
to encourage compliance with copyright laws. The Fall 2011 SOPA/PIPA proposals
were a major (failed) attempt in this direction, but not the only ones.
You are to address the conflict between
the rights of content owners (eg to stop file-sharing sites on a
timely basis) versus the rights of
ordinary users of the internet.
The conflict here is that efforts to crack down on file-sharers or to
eliminate sites that enable online infringing may also eliminate
legitimate internet activity. What Internet restrictions are
reasonable steps to take against online infringement? In going after file
sharers, how much
should "legitimate" internet sites be restrained? And, finally, is YouTube
(or sites like it) a legitimate business or a borderline pirate? What are
the tradeoffs between content protection and ordinary usage, in a world
where legitimate usage becomes infringement with a single click?
File-sharing involving copyright infringement began as peer-to-peer
operations, sometimes with the involvement of a central server that
acts as a "search engine". Such search engines can be very unpopular
with Big Content: consider thepiratebay.org. Recently, however, there has
been a
rise in
file-sharing where the infringing content is actually stored
on the central server, eg the now-defunct megaupload.com. But many users of
such "cloud" storage sites are primarily interested in finding a safe online
home for their content; file-sharing is an afterthought.
The Supreme Court
Sony v Universal doctrine
of "substantial non-infringing uses" (SNIUs) may be relevant;
is the SNIU test alone enough to allow a
site to operate? Does the later Grokster
decision provide sufficient clarification here? Note that many
file-sharing servers liken themselves to "cloud" storage, and some are
"primarily" cloud storage.
Here are some examples of potential regulations:
- Logging the IP addresses assigned to residential users (SOPA/PIPA)
- Logging the websites a given residential user has visited (not
SOPA/PIPA)
- Removing from the DNS system sites such as megadownload.net,
thepiratebay.org, isohunt.com,
cinematorrents.com (SOPA/PIPA)
- Blocking all access to 85.17.30.101 (today's IP address of megadownload.net,
located in the Netherlands), even if legitimate sites share that IP
address (SOPA/PIPA)
- Allowing the above DNS removal or blocking based on a court order
requested by
the content owner, without necessarily a hearing involving the site
owner, and certainly without holding such a hearing in a location
convenient to the site owner (SOPA/PIPA)
- Allowing court orders to ban online advertisers and online
payment processors from some sites accused of infringing (SOPA/PIPA)
- Allowing court orders to ban google, etc from listing such sites in
search results (SOPA/PIPA)
- Banning any attempt to conceal your IP address, or to access
banned websites through proxies (SOPA/PIPA, Iran, China)
- Eliminating the OCILLA safe-harbor provision for user-posted
content, when the site is alleged to be "primarily designed or operated
for the
purpose of offering services in a manner that enables or facilitates
[copyright violation]" (SOPA/PIPA; note that "primarily designed" is
legally rather vague)
- Other bans on sites that are vague or subject to interpretation.
Despite efforts, for example, there are many copyrighted images in
Wikipedia; should Wikipedia be held liable for these? Should it be shut
down?
- Criminalizing the existing DNS standard (which may automatically query
other,
non-US, registrars for sites blocked in the US). Note that the U.S. does
pretty
much control the top-level DNS servers, but that nothing
prevents users or ISPs from pointing their DNS resolver at different,
non-US,
"root servers", and in fact end users may not even know that
"unofficial" results are being included in DNS lookups.
- Vague standards (some mentioned above) that, when combined with the
substantial
financial position of the entertainment industry, might make fighting
accusations of facilitating infringement unaffordable for
smaller sites or startups, forcing such sites simply to agree not to
accept user-posted content.
- Allowing the RIAA or MPAA to subpoena ISPs for a customer's identity
based on evidence that the customer's IP address may have been involved
in file-sharing, without concrete evidence of that.
- Cutoff or bandwidth-throttling of residential Internet access after a
"three-strikes" rule (below), even if the account owner wasn't the
downloader.
- Requiring that the account owner of a cloud-storage system be able to
prove ownership of any content stored at the account
- Forbidding any sharing of content held at cloud-storage sites
- Blocking TCP port numbers that are "commonly" used in peer-to-peer
systems
- Requiring ISPs to use traffic inspection to detect filesharing
- Banning the sale of some hardware used to facilitate infringement
(sort of last-century; this category might include CD/DVD burners that
could create CDs and DVDs that were exact replicas of copyrighted ones)
- Forbidding the sale or even free sharing of software that can remove
DRM restrictions.
The 1999 DMCA created the OCILLA safe-harbor provision under which an ISP or
hosting company could not be held liable for infringement in
user-contributed content as long as they responded promptly to
"takedown" notices. Some have argued that YouTube took advantage of
this provision, complying with the law but knowing full well that
content owners would have difficulty searching all the YouTube content
for every infringing example.
Various forms of the "three-strikes" rule have now been mandated by New
Zealand, England and France. Typically a first stage is to
require ISPs
to throttle the bandwidth of accounts that appear to have been used for
filesharing, regardless of whether the actual account owner was
involved. Related proposals have included requiring ISPs to do more
inspection
of user traffic to identify filesharing, or to do more logging of sites
users have visited, or to intervene if users appear to be downloading
copyrighted content.
Many of these provisions may have significant impacts on legitimate Internet
use. However, the world is full of tradeoffs, and many non-internet laws
have impacts on legitimate activity. At what point do such restrictions on Internet
use go too far? Are there other ways to approach the problem
of file sharing? How seriously should we impact the Internet in our
efforts to stamp out file-sharing? Do not lightly dismiss the need of
the entertainment industry to reduce piracy.
Topic option 2: Music Sampling
Sampling involves taking snippets of someone else's recorded work, and
reusing them in your own work, possibly with some sort of electronic
modification. It can involve words, chords, notes, melody, drums,
rhythm, textures, other background, or whatever, and can be done in
varying lengths. More information on sampling can be found at http://en.wikipedia.org/wiki/Sampling_(music);
a large database of examples is at http://www.whosampled.com.
Is sampling a legitimate way of creating new music? Or, if permission
is not obtained, is it simply copyright infringement? In your paper you
are to address the following:
- the ethical obligations of
the new artist to the original performer
- the potential for a Fair Use
justification of sampling
These two are related in the sense that Fair Use can be seen as an
ethical use of copyrighted material, though not everyone agrees with
this. Arguably, in fact, ethical use of copyrighted material may be more
similar to de minimis use.
Music sampling takes many forms, but for the purposes of this paper
assume that the samples are of modest length (2-10 seconds). Sometimes
an entire performance is "sampled", as part of a "remix", but that is a
separate case entirely. Assume the
sampling is taken from published
recordings; ie the samples are not recreated in the studio.
In 1991, in Grand
Upright Music v Warner, a district court ruled that clearly
recognizable sampling constituted infringement. In the case Bridgeport
Music v Dimension Films,
the 6th Circuit Court ruled in 2005 that use without permission of a
2-second chord from a song by the Funkadelics constituted infringement.
More specifically, they ruled that the de
minimus
defense (ie that the sample was "too small to matter") did not apply.
However, the court left open the
possibility of a Fair Use defense. (The court left this open
because the defense did not raise the Fair Use argument at trial.) The court
wrote "Get a license or do not sample.... We do not see this as stifling
creativity in any significant way." Is that true? Some observers thought the
ruling was strongly influenced by the goal of legal convenience: a flat ban
on sampling without permission would eliminate innumerable cases as to just
what sampling was allowed.
The the industry line here is that
any
use of copyrighted
material requires permission; this gives the rights-holder the
opportunity to set a fee limited only by the law of supply and demand.
Fair Use is the one exception to this. While clearly there is no effect
whatsoever of modest-length sampling on the
market for the
original, there might be (and in
fact is) a "secondary" market for sampling rights that is
affected. The copyright law itself only refers (§107(4)) to "the effect of
the use upon the potential market for or value of the copyrighted work",
without making it clear whether the market for the entire
work is meant.
Here are a few ethical issues you might wish to consider. When using
sampling,
what exactly is your obligation to the original artist? Must the sample be
some form of homage? Is it simply a
matter of acknowledging
credit for the "homage"? Can the credit be implicit,
or must the original artist's name be spelled out? What if the sampling
is not about "homage" at all (as in the Schnauss v Guns 'n Roses case)? Are
artists
really entitled to royalties when their work is sampled? Is making money
from someone else's work without compensation ever permissible?
The basic Fair Use argument is that sampling is small and has no
effect on the market for the original work. If you do not accept this
argument entirely, what conditions might be necessary for Fair Use to
apply?
Must there be some sort of "transformative" use?
Does electronic transformation count? Is sampling fundamentally a
"productive" use, ie use that is associated with some benefit to
society? Or is it a "consumptive", or even parasitic, use? Must the sample
be recognizable?
Not recognizable? When considering the effect on the market, should the
secondary market for sampling rights count, or just the market for the
original work?
When making Fair Use arguments, make clear your position on how you
balance creators' rights with rights of the public. In general, if you
are in favor of sampling, you should respond to
those who would say that it is unfair to the original musicians.
Similarly, if you are against sampling, you should respond to the basic
Fair Use argument above. In
addressing the ethical components, make it clear whether you are
arguing from a utilitarian perspective (what is best for all musicians,
or all people), or a deontological one (what duty do musicians (or
people) owe one another).
At least some musicians believe that Fair Use does not apply, and so
permission must be
secured, and so the original artist may dictate any price. However,
this stands in sharp contrast to many other understandings of Fair Use.
Your paper will be graded primarily on organization
(that is, how you lay out your sequence of paragraphs), focus (that is,
whether you stick to the topic), and the nature and completeness of
your arguments.
It is essential
that all material from other sources be enclosed in quotation marks (or
set off as a block quote), and preferably with a citation to the
original source as well.
Expected length: 3-5 pages (800+ words)