Computer Ethics Paper 1

Due: Thursday, June 6, 2013 (week 3)

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!

Topic option 1: Copyright-related Internet Regulation

Periodically there are attempts to regulate the Internet in ways intended to encourage compliance with copyright laws. The Fall 2011 SOPA/PIPA proposals were a major (failed) attempt in this direction, but not the only ones. You are to address the conflict between the rights of content owners (eg to stop file-sharing sites on a timely basis) versus the rights of ordinary users of the internet. The conflict here is that efforts to crack down on file-sharers or to eliminate sites that enable online infringing may also eliminate legitimate internet activity. What Internet restrictions are reasonable steps to take against online infringement? In going after file sharers, how much should "legitimate" internet sites be restrained? Should file-sharing be criminalized (currently it is a civil infraction)? And, finally, is YouTube (or sites like it) a legitimate business or a borderline pirate?

What are the tradeoffs between content protection and ordinary usage, in a world where legitimate usage becomes infringement with a single click?

File-sharing involving copyright infringement began as peer-to-peer operations, sometimes with the involvement of a central server that acts as a "search engine". Such search engines can be very unpopular with Big Content: consider thepiratebay.org. Recently, however, there has been a rise in file-sharing where the infringing content is actually stored on the central server, eg the now-defunct megaupload.com. But many users of such "cloud" storage sites are primarily interested in finding a safe online home for their content; file-sharing is an afterthought.

The Supreme Court Sony v Universal doctrine of "substantial non-infringing uses" (SNIUs) may be relevant; is the SNIU test alone enough to allow a site to operate? Does the later Grokster decision provide sufficient clarification here? Note that many file-sharing servers liken themselves to "cloud" storage, and some are "primarily" cloud storage.

Here are some examples of possible regulations. It is probably best not to respond to these point-by-point, but to try to give some larger principles for what "rights" Internet users should have.
The 1999 DMCA created the OCILLA safe-harbor provision under which an ISP or hosting company could not be held liable for infringement in user-contributed content as long as they responded promptly to "takedown" notices. Some have argued that YouTube took advantage of this provision, complying with the law but knowing full well that content owners would have difficulty searching all the YouTube content for every infringing example.

Various forms of the "three-strikes" rule have now been mandated by New Zealand, England and France. Typically a first stage is to require ISPs to throttle the bandwidth of accounts that appear to have been used for filesharing, regardless of whether the actual account owner was involved. Related proposals have included requiring ISPs to do more inspection of user traffic to identify filesharing, or to do more logging of sites users have visited, or to intervene if users appear to be downloading copyrighted content.

Many of these provisions may have significant impacts on legitimate Internet use. However, the world is full of tradeoffs, and many non-internet laws have impacts on legitimate activity. At what point do such restrictions on Internet use go too far? Are there other ways to approach the problem of file sharing? How seriously should we impact the Internet in our efforts to stamp out file-sharing? Do not lightly dismiss the need of the entertainment industry to reduce piracy.

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


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 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.

The the 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. 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", without making it clear whether the market for the entire work is meant.

Here are a few ethical issues you might wish to consider. When using sampling, what exactly is your obligation to the original artist? Must the sample be some form of homage? Is it simply a matter of acknowledging credit for the "homage"? 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?

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 (800+ words)