Computer Ethics, Summer 2010
Week 2, Thursday (class 6)
Corboy Law Room 323
Read: §2.1, 2.2 of Baase on privacy
Read http://cs.luc.edu/pld/ethics/garfinkel_RFID.pdf on privacy
DMCA
ASCAP
Transformative Use
Dozier
Privacy
From whom?
AOL leak
RFID
Viacom v Youtube
filed March 2007
This case has not yet come to trial.
Google (Youtube's owner) has cited OCILLA in its defense; Viacom is
still trying to claim statutory damages. Question: does Youtube try to
"induce" users to upload protected stuff? This remains a major
unsettled issue; see MGM v Grokster.
Here's a July 2008 BusinessWeek article on the case:
http://www.businessweek.com/technology/content/jul2008/tc2008073_435740.htm.
Here's a January 2009 blog on the case:
http://copyrightsandcampaigns.blogspot.com/2009/01/viacom-v-youtube-viacoms-anti-piracy.html.
Here's a March 2009 blog, addressing (among other things) the fact that
Viacom's discovery motions involve in excess of 12 terabytes of data: http://www.digitalmedialawyerblog.com/2009/03/controlling_discovery_in_digit.html.
Here's a March 2010 story, including several internal youtube emails
about how aggressive they should be on rejecting copyrighted content: http://www.dailyfinance.com/story/company-news/viacom-v-youtube-google-a-piracy-case-in-their-own-words/19407896. For example:
On July 19, Chen wrote to Hurley and Karim: "Jawed, please stop putting
stolen videos on the site. We're going to have a tough time defending
the fact that we're not liable for the copyrighted material on the site
because we didn't put it up when one of the co-founders is blatantly
stealing content from from other sites and trying to get everyone to see
it." Four days later, Karim sent a link to the other founders, and
Hurley told him that if they rejected it, they needed to reject all
copyrighted material. Karim's reply: "I say we reject this one but not
the others. This one is totally blatant."
A July 29 email conversation about competing video sites laid out the
importance to YouTube of continuing to use the copyrighted material.
"Steal it!" Chen said , and got a reply from Hurley, "hmmm, steal the
movies?" Chen's answer: "we have to keep in mind that we need to attract
traffic. how much traffic will we get from personal videos? remember,
the only reason our traffic surged was due to a video of this type."
Here's another March 2010 blog, which makes some interesting points
about how time is on Youtube's side, and how Viacom has made some major
tactical errors: http://blog.ericgoldman.org/archives/2010/03/viacom_v_youtub.htm.
First, YouTube has repositioned itself from "video grokster" to Good Internet Citizen, withPredominately Non-Infringing Uses.
Perhaps more importantly, the intervening time has been good to YouTube
as a business and as a brand. In this sense, compare Grokster to
YouTube. At the time of the Grokster cases, it was still very much an
open question whether Grokster would ever evolve into a tool where
legitimate activity dominated. While we might still have had that same
question about YouTube in 2006, by 2010 YouTube has answered that
question resoundingly. YouTube’s business practices have matured,
everyone has had positive legitimate experiences with YouTube (even
behind-the-curve judges), and it’s clear that major legitimate players
have adopted YouTube as a platform for their legitimate activities. For
example, YouTube’s brief makes the point that all of the 2008
presidential candidates published YouTube videos as part of their
campaign. I’m guessing no 2004 presidential candidates used Grokster
for campaign purposes.
But Viacom has tremendously undermined their case that Youtube
should have been able to tell which Viacom videos were forbidden, by
being unable to tell themselves!
In YouTube’s case, I could not get over that Viacom has TWICE withdrawn
clips from its complaint. I thought
the
first time Viacom did that was embarrassing and damaging to
Viacom’s case, but then Viacom admitted that it didn’t catch all of its
errors on the first withdrawal and therefore had to
make
a second withdrawal of clips. WTF?
How hard it is for Viacom to
accurately determine which clips it has not permitted to show on
YouTube? Whether it intended to or not, Viacom has answered that
question to its detriment: hard enough that an entire brigade of
extremely expensive lawyers obligated to do factual investigations by
Rule 11 can’t get the facts right the first OR SECOND time. For me,
this undercuts Viacom’s credibility to its core. ... Viacom’s failings
have
proven to the judge that it’s too hard—too hard for lawyers
charging upwards of $1k an hour despite having unrestricted access to
accurate information in their clients’ possession, and clearly too hard
for YouTube’s slightly-above-minimum-wage customer support
representatives with no such information advantages.
Finally, there is an allegation (at the dailyfinance.com site above,
not the ericgoldman.org site) that Viacom itself was doing much of the
uploading of its material, for marketing purposes:
Google's brief recites in great detail Viacom's use of YouTube as a
promotional engine for its products, explaining how Viacom hired at
least 18 marketing firms to upload video on its behalf in order to
distance itself from the uploading and make it appear that the videos
were genuine, grassroots uploads. Viacom would "rough up" the video to
make it look pirated, and would even send its employees off-site to
places like Kinko's so that uploading would occur from computers
untraceable to Viacom.
What do you think of the OCILLA defense here? One point that has
been made is that, while OCILLA might block a financial claim, it might
not block a Viacom request for a
court restraining order that Youtube desist completely. But that was before Viacom's mistake, above.
Now consider www.vidtomp3.com.
Many bands allow music videos to be uploaded to youtube, as
"advertising", likely on the assumption that the music cannot easily be
downloaded. But vidtomp3.com makes that easy! It is true that the
encoding rate is usually relatively low (64kbps?), but it's still a
great deal.
Also note vidtomp3's disclaimer:
This site is in no way associated with myspace,
youtube or any of the other video sites we support. This tool is
designed to be used in compliance with each sites ToS and local and
national copyright laws. We do not support piracy. Only rip the sound or
use youtube downloader from none-copyrighted sources.
Is this an honest sentiment, or is it a "grokster defense"?
YouTube: is it an example of "good" sharing or "bad" sharing??
See Baase pp 219-222
Some sites once devoted to file-sharing and copy-protection
technologies:
musicview.com: GONE!
dontbuycds.org: GOING GREAT! Well, maybe not so great, but it's still there. No change since 2008.
Oh, and check out darknoisetechnologies.com
(oops, how about http://news.cnet.com/SunnComm-buys-music-antipiracy-company/2100-1027_3-5153609.html)
Original
idea was to add some subaudible "hiss" to recordings. It was subaudible
when you listened directly, but when you tried to save a copy, or even
record with a microphone from your speakers, the music would be ruined.
Project Gutenberg: http://gutenberg.org
Eldred v Ashcroft: Eric Eldred maintained a website of public-domain
books
unrelated to Project Gutenberg's, although he did do some
scanning/typing for them.
What does it mean for copyrights if Congress extends the term
continuously?
Amazon has now scanned in most of the books they sell, and offers
full-text search of the book contents. This is intended as providing an
online equivalent of browsing
in a physical bookstore. They apparently did not get a lot of publisher
permissions to do this.
Apparently, however, no major lawsuit has ever been filed!
Note that what Amazon has done arguably earns them ZERO dmca shield:
they've actively scanned the books, and keep the images on their
servers.
Clearly, "effect on the market" must be presumed POSITIVE. However, see http://www.authorslawyer.com/c-amazon.shtml.
ASCAP
How music copyrights are "supposed" to work: ASCAP (the American Society
of Composers, Authors, & Publishers). See ascap.com.
ASCAP: collects on behalf of all members, = original songwriters.
To perform, you need a license from ASCAP, BMI, &
third one (SESAC?). See ascap.com/licensing.
Even if you write your own songs and perform only them, you still may
be asked to show you have these licenses! While that sounds appalling
to some, it's based on
the not-implausible idea that the nightclub/venue where you play is the
entity to actually pay the fees, and they
have no guarantee you won't whip out an old Beatles song.
[Richard Hayes Phillips, a musician who plays only his own and
traditional material, did apparently beat BMI here. But not without a
prolonged fight.]
Blanket performance licenses are generally affordable, though not
negligible.
Generally ASCAP licenses do not
allow:
- selection of lower-cost (eg older) works, in order to save money
- proving that a significant fraction of the music played was
non-ASCAP, in order to save money.
That is, a university with regular chamber-music concerts (not covered
by copyright) must pay ASCAP just as if these were copyrighted music.
You need a license to play recorded music at public places, too.
You do not get this right
automatically when you buy a CD. Nor does purchasing sheet music provide
you with any performance right.
ASCAP collects your money, keeps about 12%, and sends the rest off to
its members. At one time this was in
proportion to their radio play,
which meant that if you play music no longer found on the radio, the
original
songwriters will get nothing. The rules have changed, however; now,
ASCAP licensees have to supply information about what was played in
order to ensure proper crediting.
ASCAP and BMI continue to support the idea of a strict difference
between public and private listening. While there are grey areas here,
it is hard to see that technology or file-sharing has contributed any
new ones.
They are very concerned about web radio,
and have had reasonable success in making it unaffordable
for any but commercial stations with traditional formats.
TRANSFORMATIVE use
This describes copying where the "purpose .. of the use" (factor 1) is
wholly different from the purpose of the original. Typically it may be
important that the new use offer something to the public that was
otherwise unavailable.
Parodies are usually considered transformative use.
Another example: from Diebold v Online Policy Group, & some
Swarthmore
students: (Actually, they were suing Diebold; the students had posted
some internal Diebold memos, and Diebold was wildly filing DMCA
takedown notices. The students, and the EFF, felt these were an abuse
of the DMCA process.)
From the judge's opinion:
Finally, Plaintiffs' ... use was transformative: they used the email
archive to support criticism
that is in the public interest, not to develop electronic voting
technology. Accordingly, there is no genuine issue of material fact that
Diebold, through its use of the DMCA, sought to and
did in fact suppress publication of content that is not subject to
copyright protection.
The Kelly and Perfect 10 cases below address this
doctrine of "transformative". We'll return to this under "Free Speech"
Kelly and Perfect 10
Baase p 232-233:
Kelly v Arriba Soft: 2002
Perfect 10 v Google: 2006 -- ??
Kelly was a photographer incensed that Arriba Soft's "ditto.com"
search engine was displaying thumbnails of his images. (There still is a
ditto.com, but I have no idea whether it
is connected to the original one.) The 9th Circuit
ruled thumbnails were fair use,
but not links to full-sized images.
They later reversed that last point.
Four-factor analysis:
Purpose and Character: use is transformative
Nature
of
work:
creative work on internet; "slightly in favor of
Kelly"
Amount & Substantiality: irrelevant; whole image must be copied
Effect
on market: The court found no harm to Kelly's market; in fact, by
helping people find Kelly's images they might help him. Use of thumbnails weighed heavily here: they
aren't nearly as attractive as
originals.
Now
to the Perfect 10 case. Perfect 10 sold nude images; they claimed to
have a business plan to sell thumbnail images to cellphone users.
Question: does this undermine the thumbnail analysis in Kelly v Arriba
Soft?
This question goes pretty much to the heart of Google's ability to
provide image searching.
images.google.com is an image-based search engine; it frames
full-sized images, and caches thumbnails.
P10's images came up on google only when some third party posted
them (at some third-party site), apparently without authorization.
District court:
The District Court ruled that links
were ok, but thumbnails were
not. More precisely, the
court granted an injunction
against the thumbnails, but not against the
links. The case is still not decided completely (and probably won't be).
Wikipedia documents the District Court ruling in http://en.wikipedia.org/wiki/Perfect_10_v._Google_Inc.
Judge Howard Matz (emphasis added):
The first, second, and fourth fair use
factors weigh slightly in favor of P10. The third weighs in neither
party’s favor. Accordingly, the Court concludes that Google’s creation
of thumbnails of P10’s copyrighted full-size images, and the subsequent
display of those thumbnails as Google Image Search results, likely do
not fall within the fair use exception. The
Court reaches this conclusion despite the enormous public benefit that
search engines such as Google provide. Although the Court is reluctant
to issue a ruling that might impede the advance of internet technology,
and although it is appropriate for courts to consider the immense value
to the public of such technologies, existing judicial precedents do not
allow such considerations to trump a reasoned analysis of the four fair
use factors.
Note that Judge Matz does not believe that value to the public has
priority over the fair-use factors.
Ninth Circuit
Ninth Circuit then reversed this: all of it is likely enough (as of 2008) fair use that P10 loses their
injunction!!
Their preliminary decision at http://webpages.cs.luc.edu/~pld/ethics/Perfect10vGoogle9thCir12-2007.pdf.
The bottom line was that google's use was TRANSFORMATIVE.
Google might still be liable for contributory infringement. However, it
appears that P10 has mostly abandoned the case.
Appeals court ruling points:
1. Google DMCA defense
2. P10's "display right" and "distribution right" are at issue.
3. [server test: whose server are the images really on?]
From the preliminary decision:
Applying the server test, the district
court concluded that Perfect 10 was likely to succeed in its claim that
Google’s thumbnails constituted direct infringement but was unlikely to
succeed in its claim that Google’s in-line linking to full-size
infringing images constituted a direct infringement. Id. at 84345. As
explained below, because this analysis comports with the language of
the Copyright Act, we agree with the district court’s resolution of
both these issues. [15458 (15), last ¶]
Google isn't doing it:
[6] Google does not, however, display a
copy of full-size infringing photographic images for purposes of the
Copyright Act when Google frames in-line linked images that appear on a
user’s computer screen.[15460 (17)]
Contributory infringement is not at issue.
Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of
Latter-Day Saints and Napster
for the proposition that merely making images “available” violates the
copyright owner’s distribution right. [15463 (20)]
Isn't this "making available" a core issue for file sharers?
At this point the appeals court turns to Google's Fair Use defense
In applying the fair use analysis in
this case, we are guided by Kelly v. Arriba Soft Corp., ... In Kelly, a
photographer brought a direct infringement claim against Arriba, the
operator of an Internet search engine. ... We held that Arriba’s use of
thumbnail images was a fair use primarily based on the transformative
nature of a search engine and its benefit to the public.
Id. at 818-22. We also concluded that Arriba’s use of the thumbnail
images did not harm the photographer’s market for his image. [15466
(23)]
Recall the District Court judge's reluctance to put much stock in
"benefit to the public"
Purpose and Character: Again, use is transformative. Very much so. Just
what is this??
District
Court: this was diminished, in terms of Google's use of thumbnails, by
P10's plan to sell thumbnails. Also, google's use is commercial.
9th Circuit: "In conducting our case-specific analysis of fair use in light of the purposes of copyright,":
this is an explicit acknowledgement of the Copyright Clause. [15470
(27), ¶ starting in middle of page]
Bottom line: Purpose&Character goes from DC's "slightly in favor of
P10" to Ninth's "heavily in favor of Google"
Also note, same paragraph:
The Supreme Court, however, has directed
us to be mindful of the extent to which a use promotes the purposes of
copyright and serves the interests of
the public.
One of the cases cited as evidence of this directive is Sony.
Another is the 1993 Campbell
case (about a 2 Live Crew parody of the Roy Orbison song Pretty Woman), in which the Supreme
Court stated that
"the more transformative the new
work, the less will be the
significance of other factors, like commercialism, that may weigh
against a finding of fair use". [15471 (28)]. (See http://supreme.justia.com/us/510/569/case.html.
A major element of the Campbell
case was that the Supreme Court backed away from the idea that
commercial use would seldom qualify as "Fair use"; compare this with
the earlier Sony quote
"although every commercial use of copyrighted
material is presumptively an unfair exploitation of the monopoly
privilege that
belongs to the owner of the copyright,....")
Also:
we note the importance of analyzing fair
use flexibly in light of new circumstances [15471 (28)]
Nature of work: no change; still "slightly
in favor of Kelly". Part of the "slightly" was that the images were
already published.
Amount & Substantiality: irrelevant; whole image must be copied; see [15473 (30)]
Effect on market: P10 did not prove their market for thumbnail
images was harmed. So this didn't count. But how would they ever do
that?? More precisely, "the district
court did not find that any downloads for mobile phone use had taken
place." [15470 (27), last line of page]
Whoa! Is that last issue really fair? Did the DC even consider that point?
More at [15474 (31)], end of 1st and 2nd paragraphs
We conclude that Google is likely to
succeed in proving its fair use defense and, accordingly, we vacate the
preliminary injunction regarding Google’s use of thumbnail images."
Note how the appellate court sort of finessed the "effect on the market"
issue.
Another option: why were P10's images ever found? Because users
uploaded them illegally. There is another path here: to allow google to
provide thumbnails and links only so long as the originals are present.
Then, P10 can go after the originals.
An interesting question: if P10 had been selling something more
socially acceptable than soft-core pornography, might this decision
have gone the other way? There's an old legal saying that "bad cases
make bad law"; is this an example?
Dozier Internet Law, http://www.cybertriallawyer.com
1. Lots of solid mainstream copyright cases:
architectural designs
jewelry designs
advertising work (sitforthecure.com)
stolen websites for:
gamers sites
physicians
small businesses
2. Their AMAZING user agreement:
http://dozierinternetlaw.cybertriallawyer.com
We do not permit you to view such [website html] code since we consider it to be our
intellectual property.
Where are they coming from?
3. Dozier Internet Law and Sue Scheff
Sue Scheff was a client of Dozier
Internet Law, which we looked at last week. She won an $11.3
million dollar verdict in her internet-defamation case; she later wrote a
book Google Bomb. The
defendant was Carey Bock of Louisiana.
But see http://www.usatoday.com/tech/news/2006-10-10-internet-defamation-case_x.htm.
It turns out Ms Bock couldn't afford an attorney, as she was at the
time of the case a displaced person due to Hurricane Katrina, and she did not appear in the case at all.
So we don't really know what happened. However, it is clear that at this
point Ms Scheff has become a master at reversing being google-bombed;
if you google for her name, her multiple blogs touting her book will
likely lead the list.
Kindle case
see:
http://online.wsj.com/article/SB123419309890963869.html
http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au
http://mbyerly.blogspot.com/2009/02/authors-guild-versus-amazon-kindle-2.html
The kindle is intended primarily for letting people read e-books.
However, it also has a feature to read the book to you, using a synthesized voice. This potentially
affects the audiobook market.
The Authors Guild has protested vehemently. They may or may not have
filed a lawsuit against Amazon.
pro-kindle arguments:
- Book publishers have already agreed to kindle distribution
- the
synthetic voice has no inflection or emotion
- The synthetic
voice does not constitute a "performance"
- No copy is made [is
this a legitimate argument?]
- Amazon is a leading seller of
audiobooks; arguably they don't see a negative effect on the market.
- what about reading for the blind?
- what about
conventional-text-to-braille scanners?
- existing audiobook
formats (CDs) are unsatisfactory
- use is transformative
anti-kindle arguments
- The kindle infringes on the right to create audio recordings of
books
- creation of a spoken "performance" is not a right that was
granted by purchasing the text.
- publishers thought this was a text-only deal
- people
who buy e-books to listen to while driving now may not buy the audio
book.
Privacy
What is privacy all about? Baase (p 45) says it consists of
- control of information about oneself: who knows what about you?
- freedom
from intrusion -- the right to be left alone in peace
- freedom
from surveillance (watched, listened to, etc)
Are these all? Note that Baase put control of information as #2; I moved
it to #1.
In some sense the second one is really a different
category: the need to get away from others. A technological issue here
is the prevalence of phones, blackberries, and computers and the
difficulty of getting away from work.
The third one is to some degree a subset of the first: who gathers
information about us, and how is it shared? Another aspect of the third
one is freedom from GOVERNMENTAL spying. Privacy from the government is a
major part of Civil Liberties.
Privacy is largely about our sense of control
of who knows what about
us. We willingly put info onto facebook, and are alarmed only when
someone reads it who we did not anticipate.
Privacy from:
- government
- commercial interests
- workplace
- local community (ie online info about us)
Sometimes, when we try to argue for our privacy, we get asked what do you have to hide? Is this
fair?
On the other hand, should we care at all about privacy? Or is it just
irrelevant?
Strange history: once upon a time we were mostly concerned about privacy
from the government, not from private commercial interests.
What do computers have to do with privacy?
Old reason: they make it possible to store (and share) so much more data
Newer reasons:
- They enable complex data mining
- They allow us to find info on others via google
- Records are kept that we never suspected (eg google searches)
- Electronic eavesdropping
Baase, p 45: Communist East-German secret police Stasi, and
non-computerized privacy invasion
Fourth amendment:
The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.
Baase p 47: computers "make it easy to produce detailed profiles of
our personal characteristics, relationships, activities, opinions, and
habits"
Maybe also of what sales pitches we're likely to respond to??
Some non-governmental privacy issues:
- shopping data
- RFID chips in cards and merchandise
- search-engine
queries
- cellphone GPS data
- event data recorders in
automobiles