Computer Ethics, Summer 2010

Week 2, Tuesday (class 4)
Corboy Law Room 323


Fair Use
Sony v Universal
NET Act
RIAA lawsuits
Michael Eisner
DRM
Copyright law/cases
DMCA

Fair Use

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.


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.

Other ethical responses to copyright infringement

Here are some comments I found on the internet, mostly in 2009.

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 just after the end of the Napster era, ~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?

Ethical arguments about copying

Baase p 228

  1. I can't afford CDs
  2. Because I can't afford CDs and so would never buy them, Big Music loses nothing when I download instead.
  3. I'm only downloading isolated tracks, not entire CDs
  4. It's ok to take from large, wealthy corporations. (Baase dismisses this. Is there any underlying justification?)
  5. I wouldn't be buying it regardless
  6. I have a right to give gifts (of tracks) to my friends
  7. personal file-sharing is so small as to be inconsequential.
  8. Everyone does it.
  9. I'd be happy to get permission to use zzzz, but don't know where. This is the Eyes on the Prize problem:  http://en.wikipedia.org/wiki/Eyes_on_the_Prize.
  10. I'm posting as a public service
  11. I'm posting to address some important social goal, not for sharing per se. (Legally, this is called transformative use)
  12. This is Fair Use.


Ethics of copyright: is it all about respecting the creator's right to sell their product, that is, is it dependent on the creator's business model?? Isn't this EXTREMELY utilitarian?
 
Bottom line: if we want the old rules to continue, we need to find ways to ensure return on investment for creators of music, movies, and books.
 
If.
 
And such ways to ensure ROI (Return On Investment, a standard B-school acronym) can be legal, technical (eg DRM), or social.

Again, how did we get into a situation where our ethical decision making involved analysis of ROI?

Criminal copyright violations

In 1994 David LaMacchia ran a "warez" site as an MIT student; that is, he created an ftp site for the trading of (bootleg) softwarez. He did not profit from the software downloads; in this, his site was a precursor of today's file-sharing systems. Because of the lack of a profit motive, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes some forms of noncommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owners like the RIAA, or in LaMacchia's case Microsoft, could still go after you).

17 U.S.C. § 101
§ 101. Definitions

Add the following between "display" and "fixed":
The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
Does this cover peer-to-peer filesharing? What if you are just distributing music you love?
17 U.S.C. §§ 506 & 507

§ 506. Criminal offenses
(a) Criminal Infringement.--Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18. either--
  1. for purposes of commercial advantage or private financial gain, or
  2. by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

How does the NET act affect file sharing?
Note that the law includes both reproduction and distribution.
Note the retail $1000 cutoff. Arguably that is 1,000 tracks. So far, prosecutors have been loathe to apply the NET act to music filesharers. This is partly due, no doubt, to the added burden of proving "willful" infringement: the law states that file sharing itself is not sufficient to establish "willfulness" (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights" -- arstechnica.com).
 
In 1994, mp3 file sharing had not yet become significant.

Napster

Napster was started June 1999. Content owners promptly sued, and Napster lost in federal district court in 2000. The Ninth Circuit appeals court then agreed to hear the case. They granted an injunction allowing Napster to continue operating until the case was decided, because they took seriously Napster's arguments that Napster might have "substantial non-infringing uses" and that Napster was only a kind of search engine while the real copyright violators were the users. The Ninth Circuit eventually found that Napster did indeed have Substantial Non-Infringing Uses, but they ruled against Napster by January 2001. After some negotiating, Napster was ordered in March 2001 to remove infringing content, which they technologically simply could not do, and so they shut down in July of that year.

Bottom line: the Betamax videotaping precedent [below] was rejected because, although SNIUs existed for Napsster, Napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it.
    
However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously.

Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers.

Did that make it ok?

Napster figured the RIAA would never bother with individual lawsuits against users.

Were they right?

Are such suits justified?
What evidence is needed for subpoena?

Note that signed and indie musicians fare VERY differently under the napster model!

Also note the long-term implications for "future fans"

IS napster like radio?

Napsterized business model for musicians:
make money giving live concerts, not selling CDs.

IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE?
Is this a case of "harm" being unequal to "wrong"?

Question: is it ethical to cause harm?
What about economic harm?


RIAA Lawsuits

When you pirate mp3s, you're downloading COMMUNISM

Part of the Napster business model was that the RIAA wouldn't ever bother to sue individual music-file-sharers. But when file-sharing continued after Napster was closed down, the RIAA felt forced to do just that.

File-sharing software works by sharing your files too; advertising your music folder(s) online when you join the service. Investigators look for these, by participating in online file-sharing networks. They record your IP address and the listed songs; they also generally download a few of the songs.

Different software works different ways. Kazaa shows a "share" folder. bittorrent shows your connection to a torrent "tracker" site, but there's no notion of "shared files".

Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They issue a subpoena to your ISP, asking for your name, and, if relevant, the MAC address of your computer. These subpoenas are almost always in a group, asking for multiple customer names.

One legal criticism of RIAA lawsuits has been over joining together of multiple individuals in one ISP lawsuit. Normally you can't do that unless you believe the cases are related.

Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records without a lawsuit, under a provision of the DMCA. But then a court ruled that this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon]

The ISP usually complies, usually without contacting you. However, it is possible for either the ISP or you (if the ISP contacts you) to file in court to "quash" the subpoena. You do need a reason for that, however. It *is* possible to file to quash without giving up your identity, but you have to hire a lawyer.

Step 2: the RIAA now sends you a settlement letter, offering you a chance to settle before the lawsuit is filed. The settlement offer is usually something like $500-1000 per track. The RIAA may or may not distinguish between tracks that showed up in your directory, and/or tracks that they actually downloaded.

You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3.

Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense.

Step 3: The RIAA files a lawsuit. They are likely to ask for a forensic copy of your hard drives (they may ask for the hard drives themselves, but you're under no obligation to give them up). An independent forensic examiner will copy the drive, and determine whether or not the songs are there. (The MAC address from Step 1 plays a role here in determining whether they've got the right computer; so does other identifying information about KaZaa, etc.)

The cost of settlement typically goes up a little at this point.


Some defenses that have NOT helped:


Some possibly valid defenses in court:

The problem with all these is that you don't want to be going to court, and the RIAA does not have to consider these when settling.

It wasn't your computer.
Typically this is due to the ISP's misidentification of you. Sometimes it's because someone jacked your wi-fi. In this case the forensic examination of your computer will probably help.

Your roommate used your computer
Your problem here is proving that this is the case. In civil cases, the burden-of-proof requirement for the plaintiff is much more modest than in criminal cases.

Your kids used your computer
There is a very limited legal doctrine of parental responsibility. Originally, the RIAA did sue parents, or made them settlement offers. More recently, after several losses, the RIAA has been suing the minors themselves. This is a little tricky; the court must appoint an attorney, often at the RIAA's expense. Also, in Capitol_v_Foster, Deborah Foster eventually won $68,000 in legal fees from the RIAA. Foster's daughter did the downloading. (The case was brought in 2004; the RIAA dropped their suit a year later but Foster continued with her countersuit. The judge eventually ordered the award for legal costs without a full trial.)

You didn't actually download any songs
What the RIAA has, as evidence, isn't evidence of downloading. All they have is evidence that you "offered" songs for downloading. At this point it might matter a great deal whether the RIAA actually tried downloading anything from your computer. Jammie Thomas had her case go to trial (the first RIAA case to reach a jury trial; Tenenbaum's July 2009 trial was the second) and she lost and was ordered to pay $220,000. But Judge Michael Davis later rethought this issue, rejected the "offered for distribution" theory, and ordered a new trial. Alas, the new trial reached a judgement against Thomas of $1.9 million.

Tenenbaum case

Joel Tenenbaum was caught downloading files by the RIAA, and was offered their past settlement offer, typically about $5000. He chose to fight. He got Harvard Law professor Charles Nesson to take his case pro bono; Nesson also involved his law-school class. They put up a vigorous and spirited defense before Judge Nancy Gertner.

They lost.

When it came time to assess damages (July 31, 2009), the jury decided $22,500 per track was fair, for a total of $675,000. Oops.

Actually, a core part of Tenenbaum's defense, and the central part of his appeal, is that the damages (and settlement offer) were disproportionately high, and not tied to actual damages. Normally, when you sue someone, all you can ask for is actual damages. Actual retail cost of music tracks is about $1. Tenenbaum got

Tenenbaum's case was the second RIAA case to go to trial. Jammie Thomas-Rasset was first; in her first case the verdict was $222,000. Thomas-Rasset got a new trial; the second verdict was $1,920,000.

Moral: think hard about settling early.

Tenenbaum's music downloading appeared to be both intentional and egregious; he had actually been sharing some 800 songs. However, it was done when he was a student.

An interesting point about the case is how the judge dismissed the fair-use claim based on the legal theory that fair use could not apply after Apple opened its iTunes store; that is, once it became possible to buy individual tracks, file-sharers lost any claim to fair use. That is, the underlying justification for "fair use" was that mp3 tracks were otherwise unavailable. Tenenbaum's appeal in part is about the idea that until iTunes dropped DRM its music tracks were still not really comparable to downloaded ones.

See http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars. and the links at the end to earlier articles.


It's really hard to generate much sympathy for the RIAA methods.
Consider, though, the theory that file sharing is a violation of their copyrights, and that such individual lawsuits are the ONLYway to proceed.

What's unfair about this process? What is fixable, within the constraints of the US legal system?

Some things to think about:


RIAA-2

The RIAA has officially given up on filing lawsuits against infringers, at least for now; they announced this policy in December 2008, just after the Tenenbaum case (lawsuits still in the pipeline will continue). The new policy is to work with ISPs to
See http://www.wired.com/epicenter/2008/12/riaa-says-it-pl.

Why would ISPs want to go along with this plan? Here are a few reasons:
  1. file-sharers are also huge bandwidth hogs. (Linux users are too, but there aren't enough of us to matter. (How many times a day do you rebuild your kernel?)) The broadband business model basically gives every customer the ability to download several dozen gigabytes a day, but the hope is that most customers will actually download somewhere in the range of dozens of megabytes a day. File-sharers who download movies pretty solidly put themselves in the heavy-downloaders camp, tying up resources for everyone.
  2. The ISP might get sued. The RIAA probably wouldn't win, but it would be an expensive hassle.
  3. It's the Right Thing To Do. Knowingly cooperating with copyright infringement is wrong.
  4. Eventually, the RIAA is likely to press for laws requiring ISPs to cooperate. Better get started now.



Bill O'Reilly on Intellectual Property (also on Privacy): http://www.youtube.com/watch?v=hCSaF4KC3eE.
Bill's correspondent is attorney Megyn Kelly. Kelly acknowledges that it is indeed a "federal offense to access email without authorization", but goes on to say that the web site is probably ok [~2:00 minute mark]. O'Reilly responds with "they're trafficking in stolen merchandise" and compares it to if "you steal somebody's car".

At 3:13, he says there is "no difference between taking a person's letter out of the mailbox and taking someones email off their internet site".

Is there a difference?

To be fair, O'Reilly here is not talking about file sharing, but rather someone hacking into someone (Palin's) private email account.


Michael Eisner, CEO of Disney, testifying before Congress in June 2000: (as included in Halbert & Ingulli, CyberEthics, 2004)

Eisner's statement remains a pretty clear example of a particular point of view, even if some of his concerns are a bit dated. He does use "intellectual property" as if you're just supposed to assume it's the same as physical property. His comments about "Pirates of Encryption" are a bit odd, especially considering that the goal of many encryption crackers was and is the ability to play purchased DVDs on arbitrary (eg linux) systems. Note that he appears to equate that with credit-card theft.

[Although Eisner's remarks supposedly are from 2000, he refers to the 2003 movie Pirates of the Carribean.]


Disney believes in technology
5 rules:
     1. legislative mandate for technological fixes
     2. international protection
     3. public education - many don't know it is wrong
     4. use appropriate technological measures
     5. appropriate pricing
            does free copying drive down prices?

DISCUSSION: Do you agree with Mr Eisner?

Conversly, does Disney engage in theft by overpricing (cf Eisner's 5th rule)

Some side issues: