Computer Ethics Paper 1
First draft due: Friday, June 3 (Saturday is also ok)
The first paper (both first draft and final version) must be submitted using
a Word-type format (.doc, .docx, .rtf, .odt, .text, ....).
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!
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: Copyright Lawsuits and the Cloud
How should society approach copyright infringement in the cloud? What
legal mechanisms should be in place to shut down cloud-based file-sharing
sites? What protections are needed for legitimate websites?
Should ordinary users have to give up any privacy? What rules should apply
to user-contributed and user-posted content?
MegaUpload.com, run by Kim Dotcom, was seized by the FBI several years
ago, though closely related sites MegaDownload.net
and Mega.co.nz are still in business.
These sites support server-based file sharing: they
allow users to upload content (often, but not always, pirated) and share
it with others. Once upon a time, the idea was that servers would be too
legally vulnerable for file-sharing, and that file-sharing had to be
peer-to-peer. This has changed.
In theory, these sites respond to DMCA takedown notices, just like
YouTube. In practice, it is very hard for content providers to keep up, as
these cloud sites are poorly indexed. Once a URL to a movie is out there,
it may be weeks before it can be taken down.
In practice, MegaUpload.com gave away upload space, and
- Charged users for premium download bandwidth
- Gave financial incentives to those who uploaded content. Sometimes the
incentive was tied to the number of downloads, making it much more
profitable for someone to upload Game of Thrones episodes than home cat
videos.
Was Kim Dotcom running a legitimate business? Or did he greatly outdo
YouTube founders Hurley, Chen and Karim in finding a way to profit from the
DMCA? (The YouTube situation, and specifically the case Viacom v YouTube, is
discussed in the course notes.) If the latter, does the DMCA need amending?
What are the obligations of a legitimate cloud provider to prevent illegal
file-sharing? YouTube eventually agreed to install a "fingerprinting" system
to detect copyrighted content. Cloud-site users presumably are
entitled to use the cloud to store their own library of copyrighted content,
though. It is only sharing that is illegal.
Does it matter if the cloud site appears to "encourage" illegal sharing,
like Grokster? Could a site evade this problem by, officially at least,
telling all users they should abide by copyright laws?
Should the cloud site be responsible for stepping in to prevent sharing?
Some public sharing is legitimate; how would sites tell?
The copyright policy of Dropbox.com
is here. Dropbox has
adopted this voluntarily, though; is there a way to legally force other
sites to adopt this kind of approach?
What laws would be needed in order to require cloud sites to
behave like Dropbox? If you propose new laws, how would they affect existing
non-cloud use of the Internet? Do the DMCA takedown rules need to be
changed?
Would it be sufficient to prevent anonymous accounts, so that if someone
uploaded copyrighted content and tried to share it, that individual could be
sued? Would this even be possible, given that many accounts are
free?
If a site doesn't play by the rules (either new or existing), what
is an appropriate mechanism for shutting them down? Seizing their DNS name?
Seizing the servers? Blocking their IP address? Ordinary civil lawsuits?
In constructing your paper, you are likely going to consider some specific
proposals, and then argue either that they would be effective, or that they
would not be.
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 either (or both) of the following:
- the ethical obligations of
the new artist to the original performer
- the potential for a Fair Use
justification of sampling
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 (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
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, 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
allowed.
On the other hand, 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. Collage use
has some resemblance to sampling; some of Prince's work can be seen at http://www.gagosian.com/exhibitions/richard-prince--may-08-2014/exhibition-images.
Prince's use seems to be rather substantial, as compared to "small-scale"
sampling.
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.
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, 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?
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
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 (1000+ words)