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 (though see AWF v Goldsmith). 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 2: Richard Prince

The Supreme Court decided the case of Andy Warhol Foundation v Lynn Goldsmith on May 18, 2023. Warhol had taken a black-and-white photo of Prince, modified it, and distributed it.

Artist Richard Prince similarly took photographs by Patrick Cariou, modified them, and sold them for five-figure sums. The case was decided in Richard Prince's favor in 2013 by the Second Circuit. The decision is at https://law.justia.com/cases/federal/appellate-courts/ca2/11-1197/11-1197-2013-04-25.html.

In light of the Goldsmith case, do you think Cariou v Prince would be decided the same way today?

Some examples of Richard Prince's work are here:

As with Andy Warhol, Richard Prince took some photographic images taken by someone else and modified them.

The argument by the defense in both cases was that the use was Fair Use; that the new work was transformative of the original. To a degree, this is the case. But Justice Sotomayor's opinion states

AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works  works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.

In part, the court notes that transformative use is a matter of degree. But, more seriously, the court says that transformative use is not necessarily something that "convey[s] a different meaning or message"; rather, it must have a "further purpose or a different character". It can be hard to distinguish, however, between "different meaning" and "different character". But, that said, there has been a long debate as to whether "transformative" use can mean any different use, or whether the new use has to have a new purpose.

Arguably, Andy Warhol's "purpose" was to create an illustration of [non-Richard] Prince. It is stylistically different, but arguably serves the same purpose. Compare the purpose of the group that shared the Diebold voting-machines documents: their purpose was to expose flaw in these voting machines, not to further the creation of competing voting machines. Or the Google v P10 case, in which the new purpose was to enable [image] search, not to compete with the originals.

Past lower-court decisions have varied as to whether, to be transformative, a use could simply involve a different meaning, or whether the use had to be for a different purpose. The AWF v Goldsmith case seems to suggest that having a "different purpose" is an important consideration.

There's another element to the "purpose" discussion. It's hard to tell how important this was, but the decision does point out that the "purpose of AWF’s recent commercial licensing of Orange Prince was to illustrate a magazine about Prince with a portrait of Prince"; that is, the purpose was to provide an illustration, not to be artistic. Richard Prince's images (which were not licensed to third parties) were always intended to be works of art.

The question, then, for this paper is, with the new definition of "transformative use" as use that has a new purpose, whether Richard Prince's works qualify.

There is some discussion of Cariou v Prince in my notes at pld.cs.luc.edu/courses/ethics/sum23/mnotes/copyright_laws.html#cariou.


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)