Computer Ethics Paper 1

Due: Friday, Feb 6

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!

After you submit this, I will comment on your paper and you will be asked to submit a rewritten version incorporating at least some of my suggestions, and also other improvements you think of.

Topic option 1: Copyright Lawsuits and the Cloud

How should content providers, or the law, approach copyright infringement in the cloud?

MegaUpload.com, run by Kim Dotcom, was seized by the FBI three years ago (though see MegaDownload.net and Mega.co.nz).

These sites support server-based file sharing: they allow users to upload content (often, but not always, pirated) and share it with others. Once upon a time, the idea was that servers would be too legally vulnerable for file-sharing, and that file-sharing had to be peer-to-peer. This has changed.

In theory, these sites respond to DMCA takedown notices, just like YouTube. In practice, it is very hard for content providers to keep up, as these cloud sites are poorly indexed. Once a URL to a movie is out there, it may be weeks before it can be taken down.

In practice, MegaUpload.com gave away upload space, and

Was Kim Dotcom running a legitimate business? Or did he way outdo Hurley, Chen and Karim (founders of YouTube) in finding a way to profit from the DMCA? (The YouTube situation, and specifically the case Viacom v YouTube, is discussed in the course notes.)

What are the obligations of a cloud provider to prevent illegal file-sharing? YouTube eventually agreed to install a "fingerprinting" system to detect copyrighted content. Cloud-site users presumably are entitled to use the cloud to store their own library of copyrighted content, though. It is only sharing that is illegal.

Does it matter if the cloud site appears to "encourage" illegal sharing, like Grokster? Could a site evade this problem by, officially at least, telling all users they should abide by copyright laws?

Should the cloud site be responsible for stepping in to prevent sharing? Some public sharing is legitimate; how would sites tell?

The copyright policy of Dropbox.com is here. Dropbox has adopted this voluntarily, though; is there a way to legally force other sites to adopt this kind of approach?

What laws would be needed in order to require cloud sites to behave like Dropbox? If you propose new laws, how would they affect existing non-cloud use of the Internet? Do the DMCA takedown rules need to be changed?

Would it be sufficient to prevent anonymous accounts, so that if someone uploaded copyrighted content and tried to share it, that individual could be sued? Would this even be possible, given that many accounts are free?

If a site doesn't play by the rules (either new or existing), what is an appropriate mechanism for shutting them down? Seizing their DNS name? Seizing the servers? Blocking their IP address? Ordinary civil lawsuits?

In constructing your paper, you are likely going to consider some specific proposals, and then argue either that they would be effective, or that they would not be.

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 either (or both) of the following:
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.

On the other hand, in Cariou v Prince, Richard Prince's use of Patrick Cariou's photographs in what is sometimes called a collage was held to be Fair Use. Collage use has some resemblance to sampling; some of Prince's work can be seen at http://www.gagosian.com/exhibitions/richard-prince--may-08-2014/exhibition-images. Prince's use seems to be rather substantial, as compared to "small-scale" sampling. (The case was finally settled in March 2014.)

The music 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, but is not recognized by the industry and there are few music-related legal cases. 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". Some have tried to argue that this also includes the market value of any portion of the entire copyrighted work.

If you prefer to take an ethical approach, here are a few ideas you might wish to consider. When sampling, what exactly is your obligation to the original artist? Must the sample be some form of homage? If so, why? Is it simply a matter of acknowledging credit for the sample? 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?

Chuck D, of Public Enemy, has claimed that "sampling [in hip-hop] basically comes from the fact that rap music is not music. It's rap over music" (http://www.stayfreemagazine.org/archives/20/public_enemy.html) Does this matter?

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 (1000+ words)