Computer Ethics, Summer 2010

Week 1, Day 3
Corboy Law Room 323

Ethical theory: deontological v utilitarian
Rights (positive and negative!)
Religion
Ethical relativism
Applications to file sharing
Fair Use
Sony v Universal

Ethical theory

More on consequentialism

zero-sum consequentialism
min/max consequentialism
disinterested-person consequentialism
act consequentialism
rule consequentialism

"the ends justify the means" This position is based on the consequentialist argument that sometimes it's ok to lie (the means), because in those special cases (eg not hurting people's feelings, protecting the innocent) the ends are clearly an overall good. However, in general consequentialism requires us to take into consideration the full consequences of the means (as well as the ends), in which case harsh or inappropriate means might be discarded as unacceptable.
    
Famous examples:

Compare justifications of lying
    Utilitarian: may be ok in some cases
        Act Utilitarianism: very case-by-case:
            Lying to Joe during the job interview: WRONG
            Lying to Bob about our having borrowed his car: maybe
            Lying to Mary about where we were last saturday: sure!
        Rule Utilitarianism: by category
            "Lying to friends" may be a category that is always wrong.
            Or should the category be "Lying to Anyone"?
        
    Deontological theories: Lying Is Wrong. Always. Even to save refugees from the Nazis.
    Kant: no moral issue should EVER be decided on a case-by-case basis
    
Compare approaches to criminal punishment
    Utilitarian: pragmatic; jail is for rehabilitation
    Deontological: jail is for punishment

Which approach do we take in current societal discourse?


"Natural right to property" is mostly a deontological notion: Locke's idea that people had a natural right to the product of their work did not have societal economic benefits as its justification. However, it is rather easy to defend property rights with a utilitarian argument.

Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian)

Most laws are largely utilitarian. Note, though, that some aspects of free speech / freedom of religion make these out to be "fundamental rights" in a deontological sense.


Some alternatives and special cases


Aretaic Ethics: from greek "Arete", virtue or excellence

Important thing is not duties or consequences but one's character. If you have the right character, you will be led to ethical action naturally. [Not mentioned in Baase]

Rights Theory

We all have certain inalienable rights, and the goal of ethics should be to preserve these. Note that this is different from duties. Locke's "natural rights" comes from this perspective. Rights-theory ethics says, basically, that ethics is about respecting other peoples rights. Do other people have a right not to be misled?


Liberties and claim rights: (Baase)
Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples:
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right.

Rights-theory ethics is probably more commonly about liberties than claim rights, but both are involved. Note that with liberties, our ethical obligations are to preserve the liberty-rights of others.


Basis for Property rights

John Locke [Baase, p 33]: Is copyright a PROPERTY right?
    
"Natural" rights: special case of liberties (negative rights), like life & liberty. These are fundamental obligations we have to one another.
    
"Utilitarian" rights: rights that we grant each other for improved social function; NOT necessarily the same as claim rights
    
The Constitution places IP in the latter category.


Religion

How does religion figure into ethics?
Are moral laws simply commandments from God, or does God give us reasons for understanding moral quandries?

10 commandments: very deontological. They are fundamental duties, and they are expressed as universals.

613 Mitzvot of the Torah: some of these are less universal (though that is clearly not their point).

Golden Rule [Matthew 7:12]:
     "do unto others as you would have them do unto you"

See also "though shalt love thy neighbor as thyself" [Leviticus 19:18]

This is closer to consequentialist than to deontological, but still different. It does identify a duty in how we treat others, but any actual details of how we are to carry out this duty are grounded in pragmatism: how we would feel if our action were to be applied to us.


Some people call the golden rule "reciprocity ethics". However, arguably the rule's real meaning is as a way of understanding how to treat others, even if they do not reciprocate.

The Golden Rule is closely associated with Jesus, but the Jewish scholar Hillel the Elder, supposedly born 110 BC but also supposedly overlapping with Jesus, gave the following as the core teaching of the Torah:

    That which is hateful to you, do not do to your fellow.

Hillel probably said this sometime between 30 BC and 10 AD; a similar formulation appears in the noncanonical biblical books Tobit and Sirach.  This is similar to the Golden Rule; however, note that Hillel's formulation is more like

    "do not do unto others what you would not have them do unto you"

This formulation is sometimes referred to as the Silver Rule.

The prophet Muhammad also said something similar: Hurt no one so that no one may hurt you. [The Farewell Sermon, 632 AD].

Some ethicists have felt that the Silver Rule is a clearer statement of our moral obligation to one another, rooted in the underlying principle that we should not harm others. The latter was clearly expressed by the time of ancient Athens (~500 BC).

Note that the Silver Rule really states "do no harm"; the part about "what you would not have them do unto you" is really about defining what harm is (that is, it's harmful if you think it would be harmful to you). Similarly, the Golden Rule might be shortened to "do good", where good is defined as what you would want done, but this analogy isn't quite as exact.

The Golden Rule might be seen as requiring us to give actively to others, beyond merely not harming them. It is not always interpreted this way, though.

The underlying "reciprocity principle" of ethics has come up many times. It is closely tied to the Social Contract theory of ethics.

The Golden Rule has been widely criticized as not providing much of a way to find out whether others in fact want to be treated the same way you want to be treated. However, if it is applied primarily to the "big picture" issues of fairness and consideration, these objections have less strength.


Professional ethics

Law: lawyers have a legal AND ethical responsibility to take their client's side!
This can mean some behavior that would be pretty dicey in other circumstances.

Corporations: have a legal AND ethical responsibility to look after shareholders' financial interests.

This is not to say that a lawyer or a corporation might not have other ethical obligations as well.


Wrong v Harm


Not everything that is harmful is wrong.
Example: business competition

Not everything that is wrong is harmful:
Hackers used to argue that it was ok to break into a computer system as long as  you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently.


Law v Ethics (p 37)

Laws:
    implement moral imperatives
    implement, enforce, and fund rights
    fund services
    establish conventions (eg Uniform Commercial Code)
    special interests
    

How do we decide what rules OTHERS should follow?
(Quite unrelated to how we decide what rules we ourselves follow.)

Ethical Relativism: it's up to the individual [or culture]. "Moral values are relative to a particular culture and cannot be judged outside of that culture" [LM Hinman, Ethics, Harcourt Brace 1994]. Hinman is speaking of "cultural ethical relativism"; a related form is "individual ethical relativism", sometimes called ethical subjectivism. That is, it's all up to you personally.

Does ethical relativism help at all with deciding questions facing you?

See Baase, p 32, under Natural Rights:
One approach we might follow is to let people (or cultures) make their own decisions. This approach has less meaning in the context of deciding how we should act personally. It is very attractive because (at first glance, at least), it is nonjudgmental, seems to promote tolerance, and seems to recognize that each of us arrive at our ethical positions via our own path.
    
Relativism has, however, some serious problems.

First, it doesn't actually provide much help in making decisions about moral issues; it is more of a commandment not to criticize others.

Second, we often don't really believe in moral relativism. Example:  murder/genocide; do we really mean that this is would be ok in Darfur if the Sudanese culture accepts it? The Nazi culture (at least the culture of higher party members) accepted genocide; do we really want to stick with relativism here?

Finally, the central claim of relativism is that it is wrong to criticize the ethical principles of others. This in itself is an absolute (non-relative) statement, and as such is self-contradictory! The utilitarians and Kantians seem to suggest that part of an ethical theory is how it affects everyone; that is, it's not just up to you.

Intellectual Property revisited

Some references in Baase illustrating that "Intellectual Property" is indeed a special case and not just an instance of physical property. For physical property, once we buy it there are no further strings.

p 199:
When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. [license/copyright strings attached]
    
p 200: five copyright rights [would these ever apply to physical property?]
  1. make copies
  2. produce derivative works (except parodies); includes translations
  3. distribution of copies
  4. performance in public
  5. display to the public
    
p 201 [is the future of the laws on physical property in doubt?]
    Nicholas Negroponte: "Copyright law will disintegrate"
        founder, MIT Media Lab
        founder, One Laptop Per Child; goal: $100 laptop
        
    Pamela Samuelson: "[no they won't]... balanced solutions will be found"
        Cornell Law prof
        writes Legally Speaking column in Comm. ACM


Suppose we do agree that songs are a form of property. Does that automatically mean we agree on what theft is? A bit of thought makes it clear that the answer is no: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here.

What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use".

Application of deontological/utilitarian analysis to music file-sharing

Music stakeholders (list from before (simplified)), with an indication as to how they might fare under file-sharing.

"signed" musicians
 lose
"indie" musicians
 gain
recording industry
 lose big
stores & distributors
 ??
current fans
 gain
future fans
 lose

Utilitarian perspective:

probably uses tradeoffs as summarized in the table above.
(might or might not weight recording industry $$$ losses higher than others.)
Deontological perspective probably would NOT consider these tradeoffs.


signed v indie musicians and copyright

    utilitarian: which scheme is better for which type?
    deontological:
        do we owe signed musicians the right to decide distribution?
        do we owe indie musicians the right to an opportunity?
        Could we have both??
        


A deontological perspective on copyright

This is surprisingly hard to argue. Some options:
But these raise even more questions. For the first option, what if the artist wants to put peculiar limitations on the use of their work, such as no ripping tracks or no playing tracks in random order or no fast-forwarding? For the second, "profit", option, do we allow artists to declare retroactive restrictions? Should every new use require new permission (probably with new fees)?

Bottom line: copyright is fundamentally about compromise between artists and society, and it is very hard to discern fundamental duties that are substantial enough to imply our financial obligation ("respect the creative works of others" doesn't necessarily do that).

Deontological perspective:
        universal principles: respect for others, fairness, honesty
        
One approach: downloading is a form of theft. This seems to be where Eisner was coming from. Does this really work for copyright?

Another approach: "we simply do not have ownership rights to information" (Stallman, later)
After all, we cannot own slaves either (in the US since 1865)

Kant, the Categorical Imperative, & file sharing: do I really want file sharing to be ALWAYS ok? If not, I should agree that we have an obligation not to download at all. But "categoricity" is not the central point: duty to others is.

Also, is free downloading a form of "using" other people? (Kant was against that)

On page 227, in the first paragraph in 4.3.5, Baase states

[Copyright infringers] benefit from the creativity and effort of others without paying for it. To most people, that seems wrong.

This is as good a statement of any of the idea that the holder of a copyright is entitled to try to profit from their work. Note, however, that copyrights do not extend to several areas where creativity and effort may be expended to come up with a profit-making strategy: business ideas are not copyrightable and the general legal opinion is that it is fair for someone to take someone else's business strategy and run with it. That is the essense of the free market.

A problem with strict ownership of [musical] rights: social progress really stalls. We'll see this later with patents, but entertainment is also based on incremental development, and one artist's response to others.


Here are some other ethical responses to copyright infringement:

http://www.crews.org/curriculum/ex/compsci/articles/ethics.htm:

We are taught from a young age that plagiarism (copying other's work) is wrong.  One might say, it is like cheating on a test when you burn a CD copy of someone else's music or game.  However, most people don't associate copying of songs, games, videos, etc. as being wrong.  Just because it is easy and hard to get caught does not make it right.  The rights of the creator must be protected if we are going to be a society that is creative and inventive.

Does copyright violation have anything to do with plagiarism?

http://guweb2.gonzaga.edu/faculty/alfino/dossier/Papers/COPYRIGH.htm: good essay distinguishing copyright from property (see ¶ 2). Also see:

The legal principle at stake in the [1774] Donaldson case [establishing that copyright is term-limited] has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interests are more important than the public good of having access to information. The ethical issue takes a metaphysical turn when we ask, as we shall in section II, just what it is that constitutes the intellectual property protected by copyright. Again, if the "substance" of intellectual property is constituted by statutory fiat, then the limitations of the right are not analogous to limitations of natural rights.

http://beadwork.about.com/od/rsourcesforprofessionals/a/EthicsCopyright.htm: you might not think home craftwork would be fraught with such copyright issues. But there are. However, is the issue described in the following (spliced) paragraph really one of copyright?

[Copyright] does not cover ideas, techniques, or facts. There are some ethical considerations to take into account though. Is this an original technique developed by your teacher that hasn't been published yet? Are you taking potential customers away from your teacher?

Does it matter? Don't students have a right to surpass their teachers? Or compete with their teachers?

Is copyright just a matter of "obeying the law"? Or do we have some deeper obligation to musicians and authors?


Why would people buy CDs? Some answers from ~2002:
    
Is there ANY way nowadays in which a CD is better than the download? (Of course, now you can buy from iTunes instead.)

What happens to the notion that there was some equilibrium reached between file-sharing and CD sales based on CD's still having an advantage? Did Eisner start this by agreeing that, as free music became more prevalent, it was appropriate to cut prices on for-sale music?

John Rawls & justice / ethics
Imagine that you have not yet been born, and you do not yet know to what station in life you will be born. How does this affect your ideas about music pricing?

Your perspective might be very different if you knew you were going to be a songwriter, versus (just) an ordinary listener. However, you might also argue that (a) you like music, and therefore (b) you want musicians to be able to earn a living, because otherwise there won't be much music.



Per-track pricing at iTunes: how does THIS change the market model?


Fundamental conflict: evolution of technology v rights of creators

Is going back to the old way an option?

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.
Factor 1 relates to how you are using the work, and is not exclusively tied to the commercial/nonprofit issue. It may help, for example, if your use is transformative: transforming the original work into something new and at least partially unrelated. Factor 2 relates to the work itself: is it fiction? Nonfiction? Text? Video? Music? A performance?

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.

The standard example of fair use 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.

Factor 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 1964 MAD case below) Here are a few parodies:

Generally the creator of a parody does NOT need permission of the original author.
 
Factor 2 refers to whether the work is nonfiction or fiction, etc. Fundamental news facts (and even sometimes images, eg individual frames from the Zapruder film of the Kennedy assassination) have been ruled "fair use". (The film itself is still under copyright, held now by the Sixth Floor Museum.) Sports scores are still debatable.
 
Factor 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. (However, the 400 words in question were those where Ford explained his pardon of Nixon.)

Music sampling, in the sense of 1-2 second snips used in another work, might be fair use. 10-20 seconds is a lot longer.
     
Factor 4: This is the big one. See Sony v Universal. A tricky problem with Factor 4, however, is that while there might not be a market now for the use in question, such a market could potentially develop. That is, a market for music sampling rights might develop (has developed!) if sampling were not claimed as fair use. A market for prerecorded television shows has definitely developed. Later we'll consider a case in which the plaintiff claimed that they were considering marketing thumbnail images, and thus images.google.com's "republication" of thumbnail images was not Fair Use.
   

Sony v Universal City Studios, 1984

SCOTUS decision: http://www.law.cornell.edu/copyright/cases/464_US_417.htm, by Justice Stevens.

This is the "Betamax" case, to at least some degree about fair use. Universal Studios sued Sony for selling the betamax VCR, on the theory that Sony was thus abetting copyright violation, and profiting from it.

District court found for Sony
Appellate court (9th circuit) found for Universal Studios
Supreme court, 5-4 decision, found for Sony

Paragraph 12 of the Supreme Court decision (emphasis added), addressing the Four Factors of Fairness:

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 served the 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.‘"
   
Is that part about "broadcast free to the public" and the "private character" explicit in the Four Factors? What about the part about "serving the public interest"? Note the consideration of the effect on the market. Note also that in 1984 there was no market for recordings of TV shows; there is now.

The Supreme Court decision then went on to introduce the doctrine of Substantial Non-Infringing Uses, still with us today and sometimes abbreviated SNIUs.

This case apparently legalized taping of TV programs for later viewing (but NOT archiving). Universal did not show how it was damaged, which didn't help their case any (presumably they thought it was obvious?). Under the 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. It was actually the District Court that made that case.

SCOTUS does NOT really spell out "Fair Use" four-factor analysis, though they hint at it in the section "Unauthorized Time-Shifting" (paragraph 46). It was the District Court that came to the Fair Use 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"

However, there is also the following very interesting line from the Sony decision, in paragraph 46:

Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, ...

This is a remarkably strong statement about commercial use! The Supreme Court has backed away from this considerably in later decisions.
  
Fred Rogers testified in favor of Sony
  
Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented.