Computer Ethics, Summer 2012

Corboy Law 602; Tuesdays & Thursdays, 6:00-9:00
Week 1, Class 2
      

Week 1 Readings

Read all of chapter 1 and the first three sections of chapter 4, especially:
    cellphone case-study in 1.2.2
    ATM case study of change brought by technology in 1.3.1
    Ethics:  1.4
    What is intellectual property?: §4.1.1


  
Michael Eisner's June 2000 statement to Congress (edited, from Halbert & Ingulli 2004).

Ethical theory

(often inseparable from Political & Justice theories)

Deontological ethics: (deon = duty)
Based on the enumeration of fundamental, universal principles.

Consequentialist (Utilitarian) ethics

Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]:
Consequentialism (Utilitarianism): the good is that which brings benefit to the people (greatest good for greatest number). This is also sometimes referred to as the "greatest-happiness principle". Another way to look at it is that it calls us to weigh benefits against harms. Bentham's original formulation called for maximizing "pleasure" and minimizing "pain", for society as a whole.

[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 to this problem is to weigh HARM much more heavily than BENEFIT, but what if the HARM is just to one person? More on that below.]

Bentham developed an entire legal code based on his theories.

Bentham's version had a problem with justice: is it ok to take the factory from the owner? (That scenario remains a central obstacle for consequentialism.)

Mill wrote a book, Utilitarianism. He was much less flat-consequentialist than Bentham. Bentham thought all forms of pleasure were comparable; Mill felt some were "better" than others. Mill also recast the idea as maximizing happiness rather than "pleasure".


Social Contract; Locke, Jean-Jacques Rousseau
We make rules to move from the State of Nature to Civilization. That is, we agree to social/ethical rules due to their CONSEQUENCES, because we WANT those consequences.

Law and the Social Contract
Ethics and the Social Contract: Ethics are in our long-term self-interest? (Under the social contract)

The idea is that if we lie, or cheat or steal, then eventually our reputation will precede us, and we will end up losing.

Problem: this theory works better for some scenarios than others.


John Rawls [1921-2002]: In negotiating the Social Contract, everyone must be placed behind the veil of ignorance, not knowing whether they would be strong or weak, rich or poor, healthy or sick. (This is often interpreted as "decide on society before you were born") They would then choose what world they wanted to live in. What ethical & legal rules do you want in place? [Usually thought of as a theory of justice, not ethics, but these are actually pretty closely related.]

How do you think Rawls would vote on health-care reform?

How do you think Rawls would choose between capitalism and socialism?

Variants of consequentialism

zero-sum consequentialism: The idea is that, notionally, we score everyone's benefit or damage numerically, and add them all up. The foremost problem with this approach is that it accepts solutions in which one person suffers greatly, but which produces a modest rise in the fortunes of everyone else. Ursula LeGuin wrote a short science-fiction story on this theme: "the ones who walk away from Omelas." This is also a theme of William James in his essay The Moral Philosopher and the Moral Life.  Look up "omelas" on Wikipedia to find James' quote and a link to the full essay; the quote itself follows.
   
Or if the hypothesis were offered us of a world in which Messrs. Fourier's and Bellamy's and Morris's utopias should all be outdone, and millions kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specifical and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? - William James

min/max consequentialism: goal is to choose actions that minimize the harm to those affected most (to minimize the worst case, ie to minimize the maximum). Example: taxes; everyone pays a share and social progress is thereby funded.
 
disinterested-person consequentialism:  To decide for or against a rule using consequentialist reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. How does this shift our perspective in the copyright debate?

act consequentialism: consider consequences of each individual act separately. Some lies may thus be permissible while others may not be. The same would apply to music downloading: music from some bands might be fair game. But how do you decide?

rule consequentialism: use consequences of hypothetical actions to formulate broad rules. For example, we ask if we are better off tolerating lying or not; we might then arrive at the broad conclusion that lying is not helpful to society, and we would apply it in every case. Rule consequentialism generally fares better under critical analysis than act consequentialism, but there is a difficulty with how broadly the rules should be interpreted. Is your rule that "lying is always wrong"? Or is it that "lying when someone will be hurt is wrong"? Or "lying is wrong even if no one is hurt, if by lying I gain something I would not otherwise receive"??

"The ends justify the means" This position is based on the consequentialist argument that sometimes it's ok to lie (the means), because in those special cases (eg not hurting people's feelings, protecting the innocent) the ends are clearly an overall good. However, in general consequentialism requires us to take into consideration the full consequences of the means (as well as the ends), in which case harsh or inappropriate means might be discarded as unacceptable.

Famous examples


Compare justifications of lying
    Utilitarian: may be ok in some cases
        Act Utilitarianism: very case-by-case:
            Lying to Joe during the job interview: WRONG
            Lying to Bob about our having borrowed his car: maybe
            Lying to Mary about where we were last Saturday: sure!
        Rule Utilitarianism: by category
            "Lying to friends" may be a category that is always wrong.
            Or should the category be "Lying to Anyone"?
        
    Deontological theories: Lying Is Wrong. Always. Even to save refugees from the Nazis.
    Kant: no moral issue should EVER be decided on a case-by-case basis
    
Compare approaches to criminal punishment
    Utilitarian: pragmatic; jail is for rehabilitation
    Deontological: jail is for punishment

Which approach do we take in current societal discourse?


"Natural right to property" is mostly a deontological notion: Locke's idea that people had a natural right to the product of their work did not have societal economic benefits as its justification. However, it is rather easy to defend property rights with a utilitarian argument.

Constitutional language re copyright is clearly focused on overall benefit to society (utilitarian)

Many laws -- at least the regulatory sort -- are largely utilitarian (criminal laws can be very deontological, but even there it is seldom as clear as what the politicians say). Note, though, that some aspects of free speech / freedom of religion make these out to be "fundamental rights" in a deontological sense.



Some alternatives and special cases

Sweat or have not

A common notion among casual observers of the file-sharing issue is that you're not entitled to anything if you didn't pay for it. Faulkner says this well (if floridly) in The Hamlet (where a second instance of petty theft is discovered):

He saw in this second flagrant abrogation of the ancient biblical edict (on which he had established existence, integrity, all), that man must sweat or have not, the same embattled moral point which he had fought singly and collectively with his five children....

This is probably a reference to Genesis 3:19: by the sweat of your brow you will eat food..., that is, food and things like it will not come freely, but will require labor.

If I eat your food, you go hungry. If I listen to your music, however, you still have it.

The more serious point is that many would argue that at least some ideas are indeed part of our common heritage, and some would include music in this category. Another perspective is that copyright is simply not physical property, but rather a government-issued grant made solely to encourage new production, and so biblical views on property are not intended to apply.

Aretaic Ethics

From greek "Arete", virtue or excellence

Important thing is not duties or consequences but one's character. If you have the right character, you will be led to ethical action naturally. [Not mentioned in Baase; not currently in vogue]

Rights Theory

We all have certain inalienable rights, and the goal of ethics should be to preserve these. Note that this is different from duties. Locke's "natural rights" comes from this perspective. Rights-theory ethics says, basically, that ethics is about respecting other peoples rights. Do other people have a right not to be misled?


Liberties and claim rights: (Baase)
Liberties (sometimes called negative rights) are rights "to act without interference"; others SHOULD NOT interfere with these. Examples:
Claim rights (positive rights): rest of us have to take measures to ENABLE your right.
Sometimes these are in conflict. Claim rights put an obligation on the rest of us to GIVE UP something, likely something to which we have a liberty-right.

Rights-theory ethics is probably more commonly about liberties than claim rights, but both are involved. Note that with liberties, our ethical obligations are to preserve the liberty-rights of others.


Basis for Property rights

John Locke [Baase, p 33]: Is copyright a PROPERTY right?
    
"Natural" rights: special case of liberties (negative rights), like life & liberty. These are fundamental obligations we have to one another.
    
"Utilitarian" rights: rights that we grant each other for improved social function; NOT necessarily the same as claim rights
    
The Constitution places IP in the latter category.



Religion

How does religion figure into ethics?
Are moral laws simply commandments from God, or does God give us reasons for understanding moral quandaries?

10 commandments: very deontological. They are fundamental duties, and they are expressed as universals.

613 Mitzvot of the Torah: some of these are less universal (though that is clearly not their point).

Golden Rule [Matthew 7:12]:
     "do unto others as you would have them do unto you"

See also "though shalt love thy neighbor as thyself" [Leviticus 19:18]

This is closer to consequentialist than to deontological, but still different. It does identify a duty in how we treat others, but any actual details of how we are to carry out this duty are grounded in pragmatism: how we would feel if our action were to be applied to us.


Some people call the golden rule "reciprocity ethics". However, arguably the rule's real meaning is as a way of understanding how to treat others, even if they do not reciprocate.

The Golden Rule is closely associated with Jesus, but the Jewish scholar Hillel the Elder, supposedly born 110 BC but also supposedly overlapping with Jesus, gave the following as the core teaching of the Torah:

    That which is hateful to you, do not do to your fellow.

Hillel probably said this sometime between 30 BC and 10 AD; a similar formulation appears in the noncanonical biblical books Tobit and Sirach.  This is similar to the Golden Rule; however, note that Hillel's formulation is more like

    "do not do unto others what you would not have them do unto you"

This formulation is sometimes referred to as the Silver Rule.

The prophet Muhammad also said something similar: Hurt no one so that no one may hurt you. [The Farewell Sermon, 632 CE].

Some ethicists have felt that the Silver Rule is a clearer statement of our moral obligation to one another, rooted in the underlying principle that we should not harm others [except of course by competing fairly with them in business]. The latter was clearly expressed by the time of ancient Athens (~500 BC).

Note that the Silver Rule really states "do no harm"; the part about "what you would not have them do unto you" is really about defining what harm is (that is, it's harmful if you think it would be harmful to you). Similarly, the Golden Rule might be shortened to "do good", where good is defined as what you would want done, but this analogy isn't quite as exact.

The Golden Rule might be seen as requiring us to give actively to others, beyond merely not harming them. It is not always interpreted this way, though.

The underlying "reciprocity principle" of ethics has come up many times. It is closely tied to the Social Contract theory of ethics.

The Golden Rule has been widely criticized as not providing much of a way to find out whether others in fact want to be treated the same way you want to be treated. However, if it is applied primarily to the "big picture" issues of fairness and consideration, these objections have less strength.


Professional ethics

Law: lawyers have a 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 a legal AND ethical responsibility to look after shareholders' financial interests.

This is not to say that a lawyer or a corporation might not have other ethical obligations as well.


Wrong v Harm


Not everything that is harmful is wrong.
Example: business competition.

If someone builds a better mousetrap, and you copy their invention, undersell them, and drive them out of business, many would say that was wrong. However, if you invent your own mousetrap, even better than theirs, and still drive them out of business, few would say that was wrong (and those few would probably own lots of cats).

Not everything that is wrong is harmful:

Hackers used to argue that it was ok to break into a computer system as long as  you did no harm. While there are some differences of opinion on this, most people who were broken into felt differently.


Law v Ethics (p 37)

Laws:
    implement moral imperatives
    implement, enforce, and fund rights
    fund services
    establish conventions (eg Uniform Commercial Code)
    special interests
    

How do we decide what rules OTHERS should follow?
(Quite unrelated to how we decide what rules we ourselves follow.)

Ethical Relativism: it's up to the individual [or culture]. "Moral values are relative to a particular culture and cannot be judged outside of that culture" [LM Hinman, Ethics, Harcourt Brace 1994]. Hinman is speaking of "cultural ethical relativism"; a related form is "individual ethical relativism", sometimes called ethical subjectivism. That is, it's all up to you personally.

Does ethical relativism help at all with deciding questions facing you?

See Baase, p 32, under Natural Rights:
One approach we might follow is to let people (or cultures) make their own decisions. This approach has less meaning in the context of deciding how we should act personally. It is very attractive because (at first glance, at least), it is nonjudgmental, seems to promote tolerance, and seems to recognize that each of us arrive at our ethical positions via our own path.
    
Relativism has, however, some serious problems.

First, it doesn't actually provide much help in making decisions about moral issues; it is more of a commandment not to criticize others.

Second, we often don't really believe in moral relativism. Example:  murder/genocide; do we really mean that this is would be ok in Darfur if the Sudanese culture accepts it? The Nazi culture (at least the culture of higher party members) accepted genocide; do we really want to stick with relativism here?

Finally, the central claim of relativism is that it is wrong to criticize the ethical principles of others. This in itself is an absolute (non-relative) statement, and as such is self-contradictory! The utilitarians and Kantians seem to suggest that part of an ethical theory is how it affects everyone; that is, it's not just up to you.

Intellectual Property revisited

Some references in Baase illustrating that "Intellectual Property" is indeed a special case and not just an instance of physical property. For physical property, once we buy it there are no further strings.

p 199:
When we buy a movie on digital video disk (DVD), we are buying one copy with the right to watch it but not to play it in a public venue or charge a fee. [license/copyright strings attached]
    
p 200: five copyright rights [would these ever apply to physical property?]
  1. make copies
  2. produce derivative works (except parodies); includes translations
  3. distribution of copies
  4. performance in public
  5. display to the public
    
p 201 [is the future of the laws on physical property in doubt?]
    Nicholas Negroponte: "Copyright law will disintegrate"
        founder, MIT Media Lab
        founder, One Laptop Per Child; goal: $100 laptop
        
    Pamela Samuelson: "[no they won't]... balanced solutions will be found"
        Cornell Law prof
        writes Legally Speaking column in Comm. ACM


Suppose we do agree that songs are a form of property. Does that automatically mean we agree on what theft is? A bit of thought makes it clear that the answer is no: traditionally, the point of theft is that it denies the owner the use of the item. Traditional notions of theft just don't make sense here.

What about "unauthorized use"? That's a reasonable first approximation, BUT it opens up a huge can of worms as to what constitutes "authorization" and what constitutes "use". (To be fair, neither of those questions applies seriously to the case of unauthorized file-sharing.)

Application of deontological/utilitarian analysis to music file-sharing

Music stakeholders (list from before (simplified)), with an indication as to how they might fare under file-sharing.

"signed" musicians
 lose
"indie" musicians
 gain
recording industry
 lose big
stores & distributors
 ??
current fans
 gain
future fans
 lose

Utilitarian perspective:

probably uses tradeoffs as summarized in the table above. (A utilitarian might or might not weight recording industry $$$ losses higher than others.) (Note that the justification given in the US constitution for the copyright clause puts most weight on future fans.)

Deontological perspective probably would NOT consider these tradeoffs.


signed v indie musicians and copyright

Utilitarian: which scheme is better for which type?
Deontological:


A deontological perspective on copyright

This is surprisingly hard to argue. Some options:
But these raise even more questions. For the first option, what if the artist wants to put peculiar limitations on the use of their work, such as no ripping tracks or no playing tracks in random order or no fast-forwarding? For the second, "profit", option, do we allow artists to declare retroactive restrictions? Should every new use require new permission (probably with new fees)?

Also, there is sometimes a fine line between using someone else's "creative work" and using someone else's idea. Here are a few classes of ideas we probably don't want to restrict:
Bottom line: copyright is fundamentally about compromise between artists and society, and it is very hard to discern fundamental duties that are substantial enough to imply our financial obligation ("respect the creative works of others" doesn't necessarily do that).

Deontological perspective:
        universal principles: respect for others, fairness, honesty
        
One approach: downloading is a form of theft. This seems to be where Eisner was coming from. Does this really work for copyright?

Another approach: "we simply do not have ownership rights to information" (Stallman, later)
After all, we cannot own slaves either (in the US since 1865)

Kant, the Categorical Imperative, & file sharing: do I really want file sharing to be ALWAYS ok? If not, I should agree that we have an obligation not to download at all. But "categoricity" is not the central point: duty to others is.

Also, is free downloading a form of "using" other people? (Kant was against that)

On page 227, in the first paragraph in 4.3.5, Baase states

[Copyright infringers] benefit from the creativity and effort of others without paying for it. To most people, that seems wrong.

This is as good a statement of any of the idea that the holder of a copyright is entitled to try to profit from their work. Note, however, that copyrights do not extend to several areas where creativity and effort may be expended to come up with a profit-making strategy: business ideas are not copyrightable and the general legal opinion is that it is fair for someone to take someone else's business strategy and run with it. That is the essence of the free market.

A problem with strict ownership of [musical] rights: social progress really stalls. We'll see this later with patents, but entertainment is also based on incremental development, and one artist's response to others.



Here are some other ethical responses to copyright infringement:

1. http://guweb2.gonzaga.edu/faculty/alfino/dossier/Papers/COPYRIGH.htm: good essay distinguishing copyright from property (see ¶ 2). Also see:

The legal principle at stake in the [1774] Donaldson case [establishing that copyright is term-limited] has significant ethical implications. If copyright is a form of limited monopoly granted through statute, based on policy considerations, and not an absolute common law right, the ethical burden of proof shifts to copyright holders to show that their property interests are more important than the public good of having access to information. The ethical issue takes a metaphysical turn when we ask, as we shall in section II, just what it is that constitutes the intellectual property protected by copyright. Again, if the "substance" of intellectual property is constituted by statutory fiat, then the limitations of the right are not analogous to limitations of natural rights.

Alfino is arguing here that our modern legal understanding of the utilitarian nature of copyright should influence our ethical understanding of copying.

2. http://www.crews.org/curriculum/ex/compsci/articles/ethics.htm:

We are taught from a young age that plagiarism (copying other's work) is wrong.  One might say, it is like cheating on a test when you burn a CD copy of someone else's music or game.  However, most people don't associate copying of songs, games, videos, etc. as being wrong.  Just because it is easy and hard to get caught does not make it right.  The rights of the creator must be protected if we are going to be a society that is creative and inventive.

Does copyright violation have anything to do with plagiarism?

For more cluelessness about file sharing v plagiarism, see http://www.guidetoonlineschools.com/tips-and-tools/textbook-piracy#2.

3. http://beadwork.about.com/od/rsourcesforprofessionals/a/EthicsCopyright.htm: you might not think home craftwork would be fraught with such copyright issues. But there are. However, is the issue described in the following (spliced) paragraph really one of copyright?

[Copyright] does not cover ideas, techniques, or facts. There are some ethical considerations to take into account though. Is this an original technique developed by your teacher that hasn't been published yet? Are you taking potential customers away from your teacher?

Does it matter? Don't students have a right to surpass their teachers? Or compete with their teachers? Or use the techniques their teacher taught them?

Is copyright just a matter of "obeying the law"? Or do we have some deeper obligation to musicians and authors?

For-profit infringement (or textbook piracy)

Let's search for the database textbook I have used, Elmasri & Navathe, on google. In early 2011, most of the first hits were for places selling .pdf copies. These originate either with a leaked .pdf copy, a cracked e-book copy, or (still most often) someone's buying a book and feeding it page by page into a scanner.

Before that, some oversees publishers would republish "international editions" of expensive textbooks, typically in paperback/newsprint form, and typically entirely without the permission of the original publisher.

There is also some free textbook file-sharing out there. Look at http://www.textbooktorrents.com. Is this about book-file-sharing? Or book-file profit? (Actually, they're sort of our of business, at least in terms of distributing torrents.)

Legally, when the copies are being sold, there are more legal tools. You can follow the money. First of all, there is money. Typically, even if the website is offshore, legal pressure can be brought against visa/mastercard/paypal to refuse to process payments for new books. Then, the site's bank account can be frozen or seized. Still, all this has the textbook world very worried. Free textbook filesharing is on the rise.

While many of the large central-server-model filesharing sites were still engaging in "free" filesharing, many also offered "premium service" subscriptions for sale, thus directly profiting off of infringement.

Here are a few of the central-server sites. Some of them actually pay cash to users who upload material that lots of others download (thus encouraging the uploading of infringing material). At the other extreme, some liken themselves to being "the cloud", a place out there where individual users can store their data safely.


Why would people buy music, eg from iTunes?
Are there any other ways in which iTunes downloads are better than unauthorized file-sharing?

What happens to the notion that there was some equilibrium reached between file-sharing and iTunes sales based on the latter's still having an advantage? Did Eisner start this by agreeing that, as free music became more prevalent, it was appropriate to cut prices on for-sale music?

John Rawls & justice / ethics
Imagine that you have not yet been born, and you do not yet know to what station in life you will be born. How does this affect your ideas about music pricing?

Your perspective might be very different if you knew you were going to be a songwriter, versus (just) an ordinary listener. However, you might also argue that (a) you like music, and therefore (b) you want musicians to be able to earn a living, because otherwise there won't be much music.


Once upon a time, the music industry was against the idea of ripping tracks from your CDs. That might still violate the "license" terms that come with your CD, though nobody cares.

In 1998 the RIAA sued Diamond Multimedia over their Rio MP3 player. The RIAA lost, mostly on the basis of the Sony v Universal Supreme Court case (below).

If respect for musicians is an issue, why are we so comfortable taking the sound files off CDs? After all, there is still the possibility that the music industry can sell us the digital tracks in addition.

This is an easy one to dismiss: if we buy a CD and have ripped the tracks, we've still paid for the music. Still, it's not difficult to imagine a world in which Diamond Multimedia lost their lawsuit about the legitimacy of their Rio MP3 player. Then where would we stand on this?


Per-track pricing at iTunes: how does this change the musician's market model?


Fundamental conflict: evolution of technology v rights of creators

How do you feel about the idea that technological evolution might make some of our rights irrelevant? It's hard to give personal examples that apply to average people.

Is going back to the old way an option?


Ethical arguments about copying

Baase p 228

Many of these date to the era in which music was sold on optical disks known as "CDs".
  1. I can't afford CDs
  2. Because I can't afford CDs and so would never buy them, Big Music loses nothing when I download instead.
  3. I'm only downloading isolated tracks, not entire CDs
  4. It's ok to take from large, wealthy corporations. (Baase dismisses this. Is there any underlying justification?)
  5. I wouldn't be buying it regardless
  6. I have a right to give gifts (of tracks) to my friends
  7. personal file-sharing is so small as to be inconsequential.
  8. Everyone does it.
  9. I'd be happy to get permission to use zzzz, but don't know where. This is the Eyes on the Prize problem:  http://en.wikipedia.org/wiki/Eyes_on_the_Prize.
  10. I'm posting as a public service
  11. I'm posting to address some important social goal, not for sharing per se. (Legally, this is called transformative use)
  12. This is Fair Use.
What do you think of these?


Ethics of copyright: is it all about respecting the creator's right to sell their product, that is, is it dependent on the creator's business model?? Isn't this extremely utilitarian?
 
Bottom line: if we want the old rules to continue, we need to find ways to ensure return on investment for creators of music, movies, and books.
 
If.
 
And such ways to ensure ROI (Return On Investment, a standard B-school acronym) can be legal, technical (eg DRM), or social.

Again, how did we get into a situation where our ethical decision making involved analysis of ROI?

Fair Use

Legal basis for fair use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
 
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
Factor 1 relates to how you are using the work, and is not exclusively tied to the commercial/nonprofit issue. It may help, for example, if your use is transformative: transforming the original work into something new and at least partially unrelated. Factor 2 relates to the work itself: is it fiction? Nonfiction? Text? Video? Music? A performance?

Question: does the First Amendment imply some sort of fair-use right to quote other works?
 
More often, Fair Use is seen as following from the "to promote useful knowledge" social-contract justification under the Copyright Clause of the Constitution.

The standard example of fair use is quotes used in a book review. Such quotes are essential to provide an example of the author's style, which may be a central issue in the review. However, asking permission clearly sacrifices the critic's impartiality.

Factor 1 is traditionally used to justify all photocopying by schools, but this is clearly overbroad.
 
PARODIES are also often considered as an Item 1 fair-use exemption, although you should be parodying the work in question and not just using the work in a parody of something else. (Maybe not; see 1964 MAD case below) Here are a few parodies:
Generally the creator of a parody does NOT need permission of the original author.
 
Factor 2 refers to whether the work is nonfiction or fiction, etc. Fundamental news facts (and even sometimes images, eg individual frames from the Zapruder film of the Kennedy assassination) have been ruled "fair use". (The film itself is still under copyright, held now by the Sixth Floor Museum.) Sports scores are still debatable, though copyright claims for these appear to have waned.
 
Factor 3: "one chapter" is probably way over the fair-use boundary. Quoting 400 words from Gerald Ford's biography was ruled not fair use. (However, the 400 words in question were those where Ford explained his pardon of Nixon.)

Music sampling, in the sense of 1-2 second snips used in another work, might be fair use. 10-20 seconds is a lot longer.
     
Factor 4: This is the big one. See Sony v Universal. A tricky problem with Factor 4, however, is that while there might not be a market now for the use in question, such a market could potentially develop. That is, a market for music sampling rights might develop (has developed!) if sampling were not claimed as fair use. A market for prerecorded television shows has definitely developed. Later we'll consider a case in which the plaintiff claimed that they were considering marketing thumbnail images, and thus images.google.com's "republication" of thumbnail images was not Fair Use.

   

Sony v Universal City Studios, 1984

SCOTUS decision: http://www.law.cornell.edu/copyright/cases/464_US_417.htm, by Justice Stevens.

This is the "Betamax" case, to at least some degree about fair use. Universal Studios sued Sony for selling the betamax VCR, on the theory that Sony was thus abetting copyright violation, and profiting from it.

District court found for Sony
Appellate court (9th circuit) found for Universal Studios
Supreme court, 5-4 decision, found for Sony

Paragraph 12 of the Supreme Court decision (emphasis added), addressing the Four Factors of Fairness:

The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that "is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for ‘plaintiff’s original work.‘"
   
Is that part about "broadcast free to the public" and the "private character" explicit in the Four Factors? What about the part about "serving the public interest"? Note the consideration of the effect on the market. Note also that in 1984 there was no market for recordings of TV shows; there is now.

The Supreme Court decision then went on to introduce the doctrine of Substantial Non-Infringing Uses, still with us today and sometimes abbreviated SNIUs.

This case apparently legalized taping of TV programs for later viewing (but NOT archiving). Universal did not show how it was damaged, which didn't help their case any (presumably they thought it was obvious?). Under the doctrine of SNIU, Substantial Non-Infringing Uses, a distributor cannot be held liable for users' infringement (that is, for contributory infringement) so long as the tool is capable of substantial noninfringing uses. The precise role of "Fair Use" in the court's reasoning is not as clear as it might be, but this certainly DID play a role. It was actually the District Court that made that case.

SCOTUS does NOT really spell out "Fair Use" four-factor analysis, though they hint at it in the section "Unauthorized Time-Shifting" (paragraph 46). It was the District Court that came to the Fair Use conclusion.
  
Paragraph 54: "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home"

However, there is also the following very interesting line from the Sony decision, in paragraph 46:

Although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, ...

This is a remarkably strong statement about commercial use! The Supreme Court has backed away from this considerably in later decisions.
  
Fred Rogers testified in favor of Sony
  
Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented.


The case was apparently a near miss; originally it looked like the vote would be 6-3 against Sony [wikipedia, based on Thurgood Marshall's papers]. The four dissenters were solidly against Sony, taking a view that the primary function of the betamax VCR was copyright infringement. Even after the 5-4 Sony final decision, it seems clear that a majority on the court (perhaps the original 6-3 majority) still felt that personal home copying was not fair use; ie was in fact infringement. Justice Stevens played a major role in the shift; Justice White also played a role in getting the court to realize that the issue was not whether such copying was infringement, but whether the betamax should be prohibited because of it.

There was also some concern on the court about to what extent Universal City Studios should have to prove actual harm. They did not do so, but that was largely because there was no market for home videos (think about it: how could there have been?) and they would have been left to prove that the existence of taped movies cut into advertising revenue for movies shown on TV (most of you won't have experienced when that was sometimes a big event). Requiring the plaintiff in a copyright case to prove actual harm remains controversial; see the Perfect 10 case (later). In Blackmun's dissent, he wrote,

[The copier] must demonstrate that he had not impaired the copyright holder’s ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay to see or hear the copyrighted work.... Even a showing that the infringement has resulted in a net benefit to the copyright holder will not suffice. [emphasis added]
  
Harry Blackmun, Thurgood Marshall, Lewis Powell, and William Rehnquist dissented, holding that Sony's new device should not be allowed. Blackmun wrote "there can be no question that under the [copyright] Act the making of even a single unauthorized copy is prohibited." Contrast this with Stevens' "One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home". Why do you think Stevens said this? And got four other justices to sign on to his opinion?

Blackmun also stated the following regarding fair use (emphasis added):

Fair use may be found when a work is used "for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research." ... other examples may be found in the case law. Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work....

"Productive" use seems to be a slightly lower standard than "transformative" use (more on that next week), but in Blackmun's mind it was not Fair Use if you were just making an outright copy ("consumptive" use). You had to be adding something to society, somehow.

Where would we be if this decision had gone the other way? It seems likely (though not certain) that the 1999 RIAA v Diamond case about the Rio mp3-player would then have gone the other way. And if that happened, Apple would likely never have introduced the iPod or iTunes (and it seems pretty clear nobody else would have both the vision and the clout to create something like iTunes), and perhaps not the iPhone or iPad. And Apple pretty much created the smartphone market with the iPhone, earlier competitors notwithstanding; the cellular phone industry remains very conservative. Although phones make excellent mp3 players, it is not at all clear the telecommunications industry would have figured this out.

Noted IP-law commentator Pamela Samuelson wrote in her paper "The Generativity of Sony v Universal: The Intellectual Property Legacy of justice Stevens"

Sony has been highly influential in new technology cases, such as those permitting reverse engineering of computer programs and development of add-on software, and those limiting liability of Internet service providers and search engines. Digital access initiatives, such as the Internet Archive and Google’s Book Search Project, rely on Sony as a key supporting precedent. Had Justice Blackmun’s fair use analysis prevailed in Sony, few, if any, of these developments would have survived copyright challenges.

Justice Stevens had a long history of feeling that the public was a significant stakeholder in the decision to grant the "copyright monopoly", and was inclined to take the public's interests seriously. Blackmun, despite his universally acknowledged liberalism (he was, after all, the author of Roe v Wade), argued strenuously here against the rights of the public. Why? Likely he saw the rights of creators as on the table here, challenged by a big corporation (Sony) that wanted to take them away.

Ironically, a different Sony outcome thus might have made file-sharing more prevalent; without iTunes there would be no alternative to CD purchases.

In 2003, following the successful shutdown of Napster -- whose Sony defense was rejected by the Ninth Circuit -- the RIAA sued Aimster, a similar music-sharing site, and made the following list of anti-Sony arguments [from Samuelson]:
  1. The primary use of the defendant’s system was for infringement
  2. Aimster was providing a service rather than a machine
  3. There was an ongoing relationship between Aimster and its customers
  4. Aimster's service enabled not only home copying, but distribution
  5. The system was specifically designed to enable infringement
Judge Posner of the Seventh Circuit wrote that none of the above applied, but that Aimster was in trouble anyway because [emphasis added - pld]  "Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use, let alone evidence concerning the frequency of such uses." Posner then wrote his own anti-Sony proposal, in the form of a cost-benefit argument, suggesting that the SNIU model be replaced with an analysis of the legitimate benefits of the new technology versus the social costs, and taking into account the cost of adding technology to support the interests of content owners. Unless that cost were prohibitively high, manufacturers would be expected to take steps to minimize the potential for infringement.

Posner's cost-benefit analysis has not really gone anywhere. Posner is noted in legal circles for these kinds of economic analyses.

Recording broadcasts remains controversial. Under FCC rules, HDTV receivers are to respect the "broadcast flag" and limit the copying of TV broadcasts when indicated by the broadcaster. The limit can be temporal (eg the copy must be viewed within seven days); another idea is to limit replay to the original device. However, the courts have struck down this rule because it was not based on actual legislation from Congress. To date [I last checked in May 2011], Congress has not passed legislation mandating adherence to the broadcast flag.

Criminal copyright violations

In 1994 David LaMacchia ran a "warez" site as an MIT student; that is, he created an ftp site for the trading of (bootleg) softwarez. He did not profit from the software downloads; in this, his site was a precursor of today's file-sharing systems. Because of the lack of a profit motive, the government lost its case against him. The NET act was passed by congress to address this in future cases. It criminalizes some forms of noncommercial copyright infringement, which until then hadn't apparently been illegal. (Copyright owners like the RIAA, or in LaMacchia's case Microsoft, could still go after you).

17 U.S.C. § 101
§ 101. Definitions

Add the following between "display" and "fixed":
The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

Does this cover peer-to-peer filesharing? What if you are just distributing music you love?

17 U.S.C. §§ 506 & 507

§ 506. Criminal offenses
(a) Criminal Infringement.--Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18. either--
  1. for purposes of commercial advantage or private financial gain, or
  2. by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement.

How does the NET act affect file sharing?
Note that the law includes both reproduction and distribution.
Note the retail $1000 cutoff. Arguably that is 1,000 tracks. So far, prosecutors have been loathe to apply the NET act to music filesharers. This is partly due, no doubt, to the added burden of proving "willful" infringement: the law states that file sharing itself is not sufficient to establish "willfulness" (infringement "with knowledge of or 'reckless disregard' for the plaintiffs' copyrights" -- arstechnica.com).
 
In 1994, mp3 file sharing had not yet become significant.

Note that, at a minimum, the proposed SOPA/PIPA laws are likely to expand the scope of criminal infringement, though my guess is that including personal downloading as criminal will not happen yet.

Napster

Napster was started June 1999. Content owners promptly sued, and Napster lost in federal district court in 2000. The Ninth Circuit appeals court then agreed to hear the case. They granted an injunction allowing Napster to continue operating until the case was decided, because they took seriously Napster's arguments that Napster might have "substantial non-infringing uses" and that Napster was only a kind of search engine while the real copyright violators were the users. The Ninth Circuit eventually found that Napster did indeed have Substantial Non-Infringing Uses, but they ruled against Napster by January 2001. After some negotiating, Napster was ordered in March 2001 to remove infringing content, which they technologically simply could not do, and so they shut down in July of that year.

Bottom line: the Betamax videotaping precedent [below] was rejected because, although SNIUs existed for Napster, Napster had actual knowledge of specific infringing material and failed to act to block or remove it. Also, Napster did profit from it.
    
However, the court refused to issue an injunction for quite a while; it was clear that the Betamax precedent was being taken very seriously.

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 should be required to obtain a subpoena to identify the home users involved?

Note that signed and indie musicians fare VERY differently under the napster model!

Also note the long-term implications for "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?
Is this a case of "harm" being unequal to "wrong"?

Question: is it ethical to cause harm?
What about economic harm?


RIAA Lawsuits

When you pirate mp3s, you're downloading COMMUNISM

Part of the Napster business model was that the RIAA wouldn't ever bother to sue individual music-file-sharers. But when file-sharing continued after Napster was closed down, the RIAA felt forced to do just that.

File-sharing software works by sharing your files too; advertising your music folder(s) online when you join the service. Investigators look for these, by participating in online file-sharing networks. They record your IP address and the listed songs; they also generally download a few of the songs.

Different software works different ways. Kazaa shows a "share" folder. bittorrent shows your connection to a torrent "tracker" site, but there's no notion of "shared files".

Step 1: The RIAA files a "John Doe" lawsuit against your ISP. They issue a subpoena to your ISP, asking for your name, and, if relevant, the MAC address of your computer. These subpoenas are almost always in a group, asking for multiple customer names.

One legal criticism of RIAA lawsuits has been over joining together of multiple individuals in one ISP lawsuit. Normally you can't do that unless you believe the cases are related.

Prior to December 19, 2003, the RIAA didn't need to sue ISPs: it could subpoena ISP records without a lawsuit, under a provision of the DMCA. But then a court ruled that this DMCA provision did not apply to RIAA-type cases. [RIAA v Verizon]

The ISP usually complies, usually without contacting you. However, it is possible for either the ISP or you (if the ISP contacts you) to file in court to "quash" the subpoena. You do need a reason for that, however. It *is* possible to file to quash without giving up your identity, but you have to hire a lawyer.

Step 2: the RIAA now sends you a settlement letter, offering you a chance to settle before the lawsuit is filed. The settlement offer is usually something like $500-1000 per track. The RIAA may or may not distinguish between tracks that showed up in your directory, and/or tracks that they actually downloaded.

You can refuse to settle. However, in that case the RIAA will almost certainly go to Step 3.

Once the possibility of a lawsuit is raised, destroying evidence becomes both a civil and criminal offense.

Step 3: The RIAA files a lawsuit. They are likely to ask for a forensic copy of your hard drives (they may ask for the hard drives themselves, but you're under no obligation to give them up). An independent forensic examiner will copy the drive, and determine whether or not the songs are there. (The MAC address from Step 1 plays a role here in determining whether they've got the right computer; so does other identifying information about KaZaa, etc.)

The cost of settlement typically goes up a little at this point.

One legal tool on the RIAA's side is statutory damages. A plaintiff in a copyright-infringement lawsuit can ask either for actual damages ($1/track) or statutory damages, which are between $750 and $30,000 per "work" (that might be for an entire CD, but if you copy 20 songs from 20 different CDs then you might get hit with a $600,000 judgement). The original legal theory behind statutory damages was that you're suing a bootleg publisher and you can't figure out how many copies he or she sold. Should these apply in individual lawsuits?

The RIAA won a verdict against Limewire, and at one point they were asking for statutory damages of $75 trillion. They eventually settled for $105 million, 0.00014% as much.


Some defenses that have NOT helped:


Some possibly valid defenses in court:

The problem with all these is that you don't want to be going to court, and the RIAA does not have to consider these when settling.

It wasn't your computer.
Typically this is due to the ISP's misidentification of you. Sometimes it's because someone jacked your wi-fi. In this case the forensic examination of your computer will probably help.

Your roommate used your computer
Your problem here is proving that this is the case. In civil cases, the burden-of-proof requirement for the plaintiff is much more modest than in criminal cases.

Your kids used your computer
There is a very limited legal doctrine of parental responsibility. Originally, the RIAA did sue parents, or made them settlement offers. More recently, after several losses, the RIAA has been suing the minors themselves. This is a little tricky; the court must appoint an attorney, often at the RIAA's expense. Also, in Capitol_v_Foster, Deborah Foster eventually won $68,000 in legal fees from the RIAA. Foster's daughter did the downloading. (The case was brought in 2004; the RIAA dropped their suit a year later but Foster continued with her countersuit. The judge eventually ordered the award for legal costs without a full trial.)

You didn't actually download any songs
What the RIAA has, as evidence, isn't evidence of downloading. All they have is evidence that you "offered" songs for downloading. At this point it might matter a great deal clearlywhether the RIAA actually tried downloading anything from your computer.

Jammie Thomas-Rasset

Jammie Thomas-Rasset had her case go to trial (the first RIAA case to reach a jury trial; Tenenbaum's July 2009 trial was the second) and she lost and was ordered to pay $220,000. But Judge Michael Davis rethought this issue, and in in September 2008 rejected the "offered for distribution" theory, and ordered a new trial. Alas, the new trial reached a judgement against Thomas of $1.9 million ($80,000 per song). The judge then lowered the amount to a total of $54,000, and the RIAA allegedly offered to settle for half that. But Thomas-Rasset did not, and in November 2010 there was a third trial leading to a total damage award of $1.5 million. In July 2011 the judge reduced this to $54,000; the RIAA may appeal.

See http://www.citypages.com/2011-02-16/news/jammie-thomas-rasset-the-download-martyr (Feb 2011).