Spring 2007 25-EP, room 203; moved to 601 4:15-6:45 wednesday Outline: copyright file sharing whether there is such a thing as "intellectual property" DMCA: Digital Millenium Copyright Act ================================================================ ================================================================ Week 2, Review: legal basis for Property rights John Locke: p 30 copyright is copyright a PROPERTY right? Copyright infringement: * deprives copyright holder of income? would that make copying legal if you simply would never buy? * copyright holder has right to determine distribution? more in keeping with current law Is THIS what Eisner meant when he says "theft is theft"? Why do we have [civil] laws? * protection [criminal law] * justice * allows INVESTMENT as returns are PREDICTABLE Legality in Napster era: napster.com was a clearinghouse for who was online, and what songs they held. Actual copying was between peers. Did that make it ok? Napster figured the RIAA would never bother with individual lawsuits against users. Were they right? Are such suits justified? What evidence is needed for subpoena? Music stakeholders: "signed" musicians record companies independent musicians fans future fans IS napster like radio? Napsterized business model for musicians: make money giving live concerts, not selling CDs. IS THIS REALISTIC? IS THIS FAIR? IS THIS JUST LIFE? ============================== Deontological ethics: (Deon = duty) fundamental, universal principles. Jeremy Bentham & John Stuart Mill: Consequentialism (Utilitarianism): the good is that which brings benefit to the people (greatest good for greatest number). WEigh benefits against harms. [Bentham apparently believed it was not ok to HARM a minority to benefit the majority, though this has always been an issue with Consequentialism. One approach is to weigh HARM much more heavily than BENEFIT, but what if the HARM is just to one person?] Compare justifications of lying Utilitarian: may be ok in some cases Deontological: lying is wrong. Always. Even to save refugees from the Nazis. Kant: no moral issue is EVER decided on a case-by-case basis Compare approaches to criminal punishment Utilitarian: pragmatic; jail is for rehab Deontological: jail is for punishment Which approach do we take in current societal discourse? How does religion figure into ethics? Lots of theological debate about whether even God is subject to moral law Professional ethics: Law: lawyers have legal AND ethical responsibility to take their client's side! This can mean some behavior that would be pretty dicey in other circumstances. Corporations: have legal AND ethical responsibility to look after shareholders' financial interests. Ethical Relativism: it's up to the individual [or culture] * we don't really believe this * this *is* an absolute (non-relative) statement ===================================== Stakeholders: fans now gain "signed" musicians lose unsigned musicians gain recording industry lose future fans lose Utilitarian perspective: probably uses tradeoffs as summarized in the table above. Deontological perspective probably would NOT. Deontologican perspective: universal principles: respect for others, fairness, honesty Classic dividing issue: whether it is ever ok to lie. Another: is the focus of criminal law to be punishment or rehabilitation? One approach: downloading is a form of theft. Another approach: we simply do not have ownership rights to information (Stallman, later) After all, we cannot own slaves (in the US since 1865) or wives (since considerably later) Signed v Indie musicians Kant, the Categorical Imperative, & file sharing: do I really want file sharing to be ALWAYS ok? Is free downloading a form of "using" other people? (Kant was against that) Law and the Social Contract Ethics and the Social Contract "Natural right to property" is more a deontological notion (though there are utilitarian notions as well) Constitutional language re copyright is CLEARLY focused on overall benefit to society (utilitarian) Problem with strict ownership: social progress REALLY stalls. We'll see this later with patents, but entertainment is also based on incremental responses. Kantian Categorial Imperative: Am I willing to make the free-download rule a universal (categorical) one? What if it is my work at stake? ===================================== ===================================== Lessig , 1999 (law professor, represented Eldred in Eldred v Ashcroft, about constitutionality of Copyright Term Extension Act) 1. The laws we make to protect property reflect its nature Groundrules support free copy of digital files. Does this HAVE to be? darned good question! Copying is hard to ban. Recent rules ban *playback*, not copying, without a license token. Are theorists who say "information wants to be free" right? Information *is* easy to copy. Or are they blinded to what might be by what is? Stefik proposals: DRM system IP is "odd sort of bird" relative to other property "The law needs to protect [IP] only in order to create the incentive to produce" 2. Do we want a different "code"? Copyrights expire: economic reasons for a different code free speech intellectual commons 3. Fair Use doctrine DRM may not support this! We have choices to make! ================ Courtney Love rock singer, wife of late Kurt Cobain [Nirvana] essentially, musicians get diddlysquat. Record companies are thieves Worse, musicians DO NOT OWN THEIR COPYRIGHTS Unlike, say, book authors (usually) ================ Summary: copyright is a sort of governmental award, and it can be bought and sold, so in that sense is property. But if a copyright is a form of property, then it is a very limited form, and any analogies drawn between a copyright and personal property are very suspect. Fair Use is not an encroachment on ones copyright; it is a fundamental part of the deal. So is expiration. Furthermore, the public has a right to petition to DIMINISH the copyright holder's rights. There is no analogy with other forms of property; the public has rights too here. (Well, the public CAN act to diminish real (land) property rights, through easement, taxation, environmental constraints, access, zoning, etc, and maybe there are cases where personal property can be so reduced. But generally these cannot be done "after the fact" without severe complaints of injustice, and/or demands for "compensation".) ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++