Computer Ethics Paper 1

Draft due Monday June 5
Final version due date will be announced after I get the draft versions graded

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 filesharing?

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?

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 Dropbox? Rapidshare 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 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.

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 Use.

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 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)