Computer Ethics Paper 1
Draft due Monday June 5
Final version due date will be announced after I get the draft versions
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: Is the DMCA an enabler of illegal cloud-based
And, if so, what should we do about it? Do we need to change the DMCA
takedown rules in favor of content owners?
Peer-to-peer filesharing is one thing, but the last decade has seen the
rise of server-based filesharing. How do sites get away with
serving up someone else's copyrighted content? How will the
content-creation industries survive? YouTube pioneered the DMCA
defense: they would take down copyrighted content as soon as
they were notified, but then some anonymous user would post it right back,
and the cycle would repeat. Content providers found it very difficult to
keep up. (YouTube has since implemented a "fingerprinting" system to block
some content from being posted.)
MegaUpload.com, run by Kim Dotcom, was seized by the FBI in 2012, though
closely related sites MegaDownload.net
and Mega.co.nz are still in business.
These sites support server-based file sharing of entire movies: they allow
users to upload content (usually pirated) and share it with others. The
site was protected by the DMCA, and the users by anonymity.
In practice, MegaUpload.com gave away upload space, and
Was Kim Dotcom running an illegal operation? Or did he simply outdo YouTube
founders Hurley, Chen and Karim in finding a way to profit legally from the
DMCA? If the latter, should the DMCA be changed?
- 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
- Took down only the specific link requested, and not other links to the
- May have excessively delayed its takedown process
What are the obligations of a cloud provider to prevent illegal
file-sharing, under the DMCA? Is a YouTube-like content-fingerprinting
system required? 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.
The theory in the Viacom
v YouTube decision was that sites are protected unless they are aware
of a specific infringing file. Should that rule be relaxed? If so,
how? Wikipedia, after all, depends on a huge amount of user-contributed
content. So do many other sites, both commercial and noncommercial. If you
propose changes to the DMCA, you should either explain how Wikipedia and
YouTube could continue to exist, or else explain why they are too risky to
tolerate. In most of the world, Wikipedia editors post relatively few video
and sound files, but in places where Wikipedia is one of the few sites
available, lots of pirated content sneaks on. For YouTube, of course, video
is all they offer.
Dropbox appears to have figured out
how to prevent users from using Dropbox for filesharing; here are their terms of service. What
rules would be needed in order to require cloud sites to behave like
went broke after they were forced to change their rules.
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? Do anonymous accounts have a social value?
In constructing your paper, one approach is 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:
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
- the ethical obligations of
the new artist to the original performer
- the potential for a Fair Use
justification of sampling
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
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
Neither of these cases addressed Fair Use. Furthermore, since then, a series
of court decisions have expanded Fair Use. 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; see
here in the class notes. Prince's use seems to be rather substantial,
as compared to "small-scale" sampling. In Authors
Guild v Google Books, the Second Circuit ruled that Google's
digitizing of a vast number of books, in order to support search, was Fair
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, though this is a stretch.
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
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)