Computer Ethics Paper 1 (DRAFT)

You are to pick one of the topics below. Both relate to copyright law as it applies to content for which the Utilitarian copyright justification -- that new content will cease to be available if we don't support copyright -- breaks down. Should we therefore allow free usage? Or should we continue to enforce the copyright holders' rights? Both forms of copying have also been enabled, largely, by computers, though music sampling from vinyl recordings did exist.

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.

In order to make it easier for me to comment on your paper, I am asking that all submissions be in an editable Word (or LibreOffice) format: .docx, .doc, .odt, .rtf (or even plain text). But please do not submit in pdf.

Topic option 1: 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. (Although the word is sometimes used to describe using someone else's musical ideas in your own composition, we will stick here to the use of recorded snippets.)

Is sampling without permission 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 [the 6th Circuit includes Nashville] 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.

For a discussion as to why Fair Use sometimes seems to be avoided in music lawsuits, see Edward Lee's Fair Use Avoidance in Music Cases.

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? Does it matter if the use in question is of someone's voice, versus an instrumental segment? After all, the instrumental segment can in principle be reproduced by other musicians, but imitating someone else's voice can be impossible.

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, explain why! In this case, 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?

An alternative argument is that, at least for singing, a person has a right to control the use of their own voice. You can also apply that to instrumental music, though maybe the argument is less compelling.

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.


Topic option 2: Sci-Hub

Sci-hub is a huge repository of scientific papers available for free over the Internet, founded by Alexandra Elbakyan. As of today you can still access it at sci-hub.se, but litigation from journal publishers has shut down sci-hub.org, sci-hub.ac, and several others. If all else fails, try using the tor browser and accessing scihub22266oqcxt.onion. To access a journal, first find its doi, or document object identifier (eg doi.org/10.1016/0168-0072(89)90038-9), by looking the paper up in google. Then paste the doi into the Sci-hub search box. (Sometimes Sci-hub presents you with a "captcha" box, with instructions in Russian.)

Traditionally, if you submit a scientific paper to a journal, and they agree to publish it, then they ask you to assign the copyright to them. At this point it is unlawful to distribute copies of the paper, although some journals are flexible about this. You do not get any royalties; in fact, you are likely to be charged a publication fee. In technical fields, authors are expected to do their own electronic typesetting. And peer reviewers are not paid either. Many sites no longer receive paper copies of journals; everything is electronic.

The journal publishers then sell subscriptions to libraries. These subscriptions are remarkably expensive. Academic libraries typically spend multiple millions of dollars (some detailed information is here).

It is generally believed that, when Aaron Swartz downloaded four million papers from JSTOR, his ultimate goal was to make them publicly available. Sci-hub has done exactly that, but now has almost 65 million papers. And, through a shadowy network of activists who have online access to extensive libraries, if Sci-hub doesn't have the paper you want then they can usually get it quickly.

Sci-hub has made journal publishers apoplectic. Some publishers are non-profit (like the American Chemical Society) and some are for-profit, such as Springer and Elsevier. But Sci-hub is based in Kazakhstan, pretty much out of reach of copyright law (the servers may have migrated elsewhere).

On the face of it, Sci-hub is a flagrant violator of copyright law. But there are two caveats:

The second argument is not really a Fair Use argument, but it completely undermines the Utilitarian justification for copyright. How much should we put up with onerous restrictions put in place by publishers, just for the sake of their own profits? For music and movies, if the creators aren't paid then the supply will dry up, but not here. Does this matter?

There are now open-access journals that make all content freely available. But by and large these are not the "top" journals, the for-profit ones that most advance a scientist's reputation, mainly because top journals are highly selective about what papers they accept and open-access journals have a harder time of that. Open-access journals also charge authors (or their grants, or their institutions) a lot more than traditional journals. For-profit journals lean heavily on this argument that their selectivity is contributing value to the scientific publishing process. On the one hand, because publishers don't contribute directly to the financial incentive for authors, maybe they shouldn't get the benefit of copyright. On the other hand, authors do sign over their copyright rights to the publishers, and so maybe that is enough.

The social cost of journal paywalls is considerable. Many researches from poorer institutions simply cannot afford broad access. This includes many US institutions; the situation at third-world institutions is even worse. Scientists in Sierra Leone missed some important data about the Ebola virus because they could not afford the journals. That said, we don't really know the social costs of abandoning closed publishing. Some have argued that such a move would undermine the standards of excellence in scientific work, as getting published in an open journal is often easier. But, then, maybe highly selective open-access journals will increase in number.

There is no legal justification (involving Fair Use or otherwise) of Sci-Hub, unlike for music sampling. However, there is an ethical social-benefit argument to be made. One argument is that scientific information should be free, period; another is that the results of publicly funded research should be free (though authors and artists creating works with government funding (eg from the NEH) are allowed to sell their works). There is also the failure of the utilitarian argument against infringement: Sci-hub will not cause any scientist to write fewer papers. Musicians might get some money from sampling fees, but scientists receive absolutely no direct financial benefits from journal sales. Should we stick with the utilitarian copyright argument anyway? Or is there a deontological argument that applies here?

Make a case and come to a decision. Is the use of Sci-hub wrong? Should all journals migrate to an open-access policy? Do scientific publishers add real value? Should copyright law be strictly enforced here? Why or why not?

Your paper will be graded primarily on the following:

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)