Computer Ethics Paper 1
Due: Friday, February 9 [week 4] (Saturday is also ok, but you will have to
submit via email.)
You are to pick one of the topics below. Both relate to
copyright law as it applies to content for which the Utilitarian copyright
justification -- that new content will cease to be available if we don't
support copyright -- breaks down. Should we therefore allow free usage? Or
should we continue to enforce the copyright holders' rights?
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: 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.
(Although the word is sometimes used to describe using someone else's
musical ideas in your own composition, we will stick
here to the use of recorded snippets.)
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
- the ethical obligations of
the new artist to the original performer
- the potential for a Fair Use
justification of sampling
Music sampling takes many forms, but for the purposes of this paper assume
that the samples are of modest length (1-5 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
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, and you
cannot add new arguments on appeal.) 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
Neither of these cases addressed Fair Use. Furthermore, since then, a series
of court decisions have expanded Fair Use. 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; see
here in the class notes. Prince's use seems to be rather substantial,
as compared to "small-scale" sampling. In Authors
Guild v Google Books, the Second Circuit ruled that Google's
digitizing of a vast number of books, in order to support search, was Fair
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, though this is a stretch.
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, explain why! In this case, 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
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
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.
Topic option 2: Sci-Hub
Sci-hub is a huge repository of scientific papers available for free over
the Internet, founded by Alexandra Elbakyan. As of today you can
still access it at sci-hub.tw, but
litigation from journal publishers has shut down sci-hub.org, sci-hub.ac,
and several others. If all else fails, try using the tor browser and
accessing scihub22266oqcxt.onion. To access a journal, first find its doi,
or document object identifier (eg
doi.org/10.1016/0168-0072(89)90038-9), by looking the paper up in google.
Then paste the doi into the Sci-hub search box. (Sometimes Sci-hub
presents you with a "captcha" box, with instructions in Russian.)
Traditionally, if you submit a scientific paper to a journal, and they
agree to publish it, then they ask you to assign the copyright to them. At
this point it is unlawful to distribute copies of the paper, although some
journals are flexible about this. You do not get any royalties; in fact,
you are likely to be charged a publication fee. In technical fields,
authors are expected to do their own electronic typesetting. And peer
reviewers are not paid either. Many sites no longer receive paper copies
of journals; everything is electronic.
The journal publishers then sell subscriptions to libraries. These
subscriptions are remarkably expensive. Academic libraries typically spend
multiple millions of dollars (some detailed information is here).
It is generally believed that, when Aaron Swartz downloaded four million
papers from JSTOR, his ultimate goal was to make them publicly available.
Sci-hub has done exactly that, but now has almost 65 million papers. And,
through a shadowy network of activists who have online access to extensive
libraries, if Sci-hub doesn't have the paper you want then they can
usually get it quickly.
Sci-hub has made journal publishers apoplectic. Some publishers are
non-profit (like the American Chemical Society) and some are for-profit,
such as Springer and Elsevier. But Sci-hub is based in Kazakhstan, pretty
much out of reach of copyright law (the servers may have migrated
On the face of it, Sci-hub is a flagrant violator of copyright law. But
there are two caveats:
- The research in question is typically publicly funded; why shouldn't
it be publicly accessible?
- Nobody is claiming that Sci-hub will have any impact on the
creation of new scientific research.
The second argument is not really a Fair Use argument, but it completely
undermines the Utilitarian justification for copyright. How much should we
put up with onerous restrictions put in place by publishers, just for the
sake of their own profits? For music and movies, if the creators aren't
paid then the supply will dry up, but not here.
There are now open-access journals that make all content freely
available. But by and large these are not the "top" journals, the ones
that most advance a scientist's reputation.
The social cost of journal paywalls is considerable. Many researches from
poorer institutions simply cannot afford broad access. This includes many
US institutions; the situation at third-world institutions is even worse.
Scientists in Sierra Leone missed some important data about the Ebola
virus because they could not afford the journals.
It is not easy to formulate a compelling Fair Use argument here, unlike
for music sampling. However, there is an ethical social-benefit argument
to be made. One argument is that scientific information should be free,
period; another is that the results of publicly funded research
should be free. There is also the failure of the utilitarian argument
against infringement: Sci-hub will not cause any scientist to write fewer
papers. Musicians might get some money from sampling fees, but
scientists receive absolutely no financial benefits from journal sales.
Should we stick with the utilitarian copyright argument anyway? Or is
there a deontological argument that applies here?
Make a case and come to a decision. Is the use of Sci-hub wrong? Should
all journals migrate to an open-access policy? Do scientific publishers
add real value? Should copyright law be strictly enforced here? Why or why
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)