Computer Ethics


In this section of notes we will explore ethical theories in the context of file-sharing, and vice-versa.

Case studies
    0: Is file-sharing theft?
    0.5: ATM machines
    1. Self-driving cars
    2: Cellphones
    3: E-commerce and free online services
    4: ISP privacy
    5: AI
Themes
Law
File-sharing
Slippery slopes
"Intellectual Property"
Who is copyright for?
The Copyright Clause
IP and the Free Market
Napster
The Music Industry
Two justifications of copyright
Deontological ethics
Utilitarianism
To sweat or have not
Rights
Property rights
Religion
Relativism
IP revisited
File-sharing analysis
Deontological approaches to copyright
Some ethical responses
For-profit infringement
Ethical arguments about copying


Baase 1.4.2: ethical theories
There are two great (classes of) ethical theories:

    1. Deontological: rules-based; we have fundamental duties we owe others (deon = duty)
    2. Utilitarian: consequences-based; we establish moral rules for their social utility
    3. Relativism: superficially appealing, but ultimately unsatisfactory

Why Computers?

Copyright: Once upon a time, ordinary people had virtually no opportunity to violate copyright laws. Now this is ubiquitous. What happened?

Privacy: What have computers done here? Whose fault is it?

Cellphones: First of all, should this be filed under "communications"? Under "computing"? Under "photography"? Or under "privacy"? How have cellphones changed the way we live?

Criminal Law: We'll get to this again in Case Study 0 below, but hacking can be a felony. Even if it is not malicious. Even, in theory, if all that was involved is a violation of a site's terms of service. Because accessing a site contrary to the site's ToS is unauthorized, and unauthorized computer access is hacking, right?

Speech: How are the rights of the "press" different from the rights of ordinary individuals to post content? What about posting data or source code that might have adverse societal consequences? Like the code for VLC player, or a 3D printer file for a firearm?

What is Facebook doing censoring us? How have social networks affected us generally? Can the current polarization in US politics be blamed in part on social networking?

What are your rights if Facebook blocks your account? Do you have any?


Case Study 0: Is file-sharing theft?

In January 2013, Internet activist Aaron Swartz committed suicide. Two years earlier he was arrested for downloading about four million scientific articles from the JSTOR database, which he had probably intended to make public in the interests of providing universal access to scientific research. Normally JSTOR charges for downloads of these papers (one of my papers is there for $10), but Swartz was entitled to a free JSTOR account at MIT. He did, however, take significant steps to bypass the limits JSTOR set on the number of free downloads.

From http://arstechnica.com/tech-policy/2011/07/reddit-founder-arrested-for-excessive-jstor-downloads/: Swartz started by using a wi-fi connection to download, but JSTOR limited the number of downloads to a single IP address. Swartz kept changing his hardware MAC address, so as to get a new and different IP address. Later he discovered there was no limit for computers directly connected to MIT's wired network; he set up a laptop in an unlocked wiring closet and left it running (and downloading) for weeks.

The JSTOR Terms of Service apparently did state that users could not use software to automate the process of making multiple downloads. More concretely, the ToS disallowed downloading any one "entire journal". Some specific points disallowed:

(c) incorporate Content into an unrestricted database or website, except as provided in 2.1(e) above;

(f) download or print, or attempt to download or print an entire issue of a journal...

Swartz also had a long history of depression, although the prosecution threat may have pushed him over the edge.

Swartz was charged with the following:

(from http://www.volokh.com/2013/01/14/aaron-swartz-charges/)

Aaron was facing trial in a few weeks; apparently there was a plea-bargain offer on the table which called for six months of prison time, but prosecutors indicated they would ask for thirty years of prison if the case went to trial.

None of the charges above are actually for "theft", or even for criminal copyright infringement. Still, it is fair to ask: did this case involve theft? Or was this, despite the fact that articles were "taken", really a hacking case?

The law under which Swartz was charged is the same law that makes it a felony to create multiple Facebook accounts, or for anyone under age 18 to have used google for searching prior to March 1, 2012.

Case Study 0.1: Do we just not respect intellectual property?

Maybe another way to look at this is that ordinary people simply don't connect to "intellectual" property rules. Swartz thought it was fair to publish copyrighted papers. Many people don't have a problem with downloading copyrighted music or video.

Why is this? Is it wrong? Or is there something else going on? Many people who don't respect copyright would never dream of stealing a physical item.


Case study 0.5: ATM machines

In the 3rd edition of Baase, there was a case study on the introduction of ATM banking machines and cell phones. Here were some potential consequences of ATMs that people were once worried about:
Walter Wriston was CEO of CitiBank in the 1970's when ATMs were then widely deployed in New York City. Wriston was at one point credited with the realization that many if not most New Yorkers actually preferred ATMs to using human tellers; they did not particularly like that form of human contact. [source: newspaper article I read long ago, although Wriston certainly invested heavily in ATMs and, for a Wired interview, said " 'Old people won't use automatic teller machines,' they said, 'and young people won't use them, because they prefer going to tellers with pearly white teeth.' But it turned out that people would rather get their money in front of the Hard Rock Cafe at 11 o'clock at night than get smiled at by a teller."]

Furthermore, ATMs are available when it's convenient for you; many banks still have very limited late hours.

As for unemployment, Baase had data that tell a different story:
    1983   480,000
    1993   301,000    (this drop was due in part to ATMs)
    2006   600,000     Wow!

As for the electronic trail, that exists equally for teller transactions. If you live in a small town, the ATM is likely to offer greater privacy.

One proposal for addressing ATM crime is to give patrons a "duress PIN", eg their regular PIN backwards. The main reason this has never been implemented is that there appears to be little demand for it.

Case study 1: Self-Driving Vehicles

See Baase 5e §1.2.1. What changes when most cars drive themselves?
  1. Will people still want to own cars?
  2. How will the disabled be affected?
  3. How will cities evolve? Will sprawl increase or decrease?
  4. How will traffic evolve?
  5. Will we need new roads?
  6. Will human drivers be banned from Interstates?
  7. Will self-driving cars developed in Southern California ever be able to deal with snow?

Case study 2: Cellphones

Regarding cellphones, here is a list of issues from Baase 4e §1.2.1 / 5e §1.2.2
  1. more outdoor risk-taking
  2. talking while driving
  3. texting while driving
  4. courtesy & rudeness (see the "I've got pressure" sidebar on 4e p 13 / 5e p 14)
  5. cameras, lack of awareness of them, and privacy (again, see the "I've got pressure" sidebar)
  6. organizing flash mobs
  7. location tracking
  8. general app-based loss of privacy
What do you think of Baase's quote that "more folks have access to a cellphone than to a toilet"? [Diamandis & Kotler]

What about the issues above? Which of them can be addressed (I didn't say "fixed") through technology? Through other means?

Case study 3: E-commerce and Free Stuff (Baase 5e §1.2.3)

Shopping online saves gas. So does visiting friends online. But what are the drawbacks?

Amazon can be a good deal today. But what happens when Amazon is the only place you can order from?

What is the actual business of Facebook? What information do they sell about you? How much tracking is a fair trade-off for being able to use a free online service?

Case study 4: privacy from your provider

How do you feel about Apple or Google going into your phone and rifling about, deleting stuff? How about Amazon going into your kindle? Microsoft going into your laptop?

For that matter, how do you feel about Verizon or Sprint recording your minute-by-minute location?

Microsoft deleted older versions of the Tor anonymizing software from millions of Windows machines in August 2013, without the owners' permission: http://www.dailydot.com/technology/tor-botnet-microsoft-malware-remove/. Does it matter if the removal was related to a security vulnerability?



§1.3: Themes

Why study computer ethics?

1. An opportunity to look at old problems in new setting.

Do old analogies apply? Classic case: copyright. Note that in some sense computing provides a testbed for classical ethics: computing supplies many examples of classical ethical dilemmas in a new context.

2. New rules are required as we adapt to new technology. Examples:
3. Varied sources of solutions to new problems. Example: cell phone case study, Section 1.2.
4. Global scope of the Internet: good and bad

On May 13, 2014 the European Court of Justice found a "right to be forgotten" and ordered Google to remove some links that some individuals found embarrassing. Just who is in charge of deciding what has to be removed? Should Donald Sterling be able to have all links to his infamous remarks removed from Google?

5. Tradeoffs
    between privacy and convenience. True of computers, true of door locks.
   
6. Perfection is not one of the options.
We have to compare new technological risks to corresponding old-fashioned risks, not to doing nothing at all. As an example, autonomous vehicles should be compared to vehicles with human drivers, not to staying home.

7. Differences between ethical choices and the law
Computers are a form of technology. Why do we talk about "computer ethics" but not "automobile ethics" or "aircraft ethics"? (Note that we do talk about medical ethics and biotechnology ethics.)

Ethics
Some people like to distinguish between ethics and morals by saying morals are what we do; ethics is the study of morality, or how we reason about what we do.

Descriptive ethics: what do people actually do
        compare sociology, etc

Normative ethics, or PREscriptive ethics: what SHOULD we do?

Are we going to figure out right and wrong here? No. But we will figure out how to:
Another issue with normative ethics is the distinction between what we should do and what other people should do.

Law

What are laws for?
For the last one, note that the goal is to encourage investment. Possibly at the expense of justice! (Think about that one; is that a bad thing?)

Laws establishing a cap on damages for pain and suffering, or that cap liability in any form, are sometimes put in this category.

(Some people have argued that software patent law fails to provide a "consistent basis for economic activity", in that patent lawsuits are unpredictable to an unusual degree. Other people disagree.)

Sometimes lobbying isn't driven by money. Consider the controversial (and now no longer in effect) Illinois anti-eavesdropping law. Nominally it was intended to protect peoples' privacy; in practice, it appears to have been intended to prevent the recording of police (http://www.chicagoreader.com/chicago/chris-drew-art-peddling-law-arrest-illinois-eavesdropping-act-aclu/Content?oid=2448923).

And thanks to a 1994 amendment that makes it nearly unique in the nation, [the eavedropping law] doesn't distinguish between public and private conversations....

Part of a 1994 omnibus crime bill sponsored by former Chicago police detective Wally Dudycz, then a northwest side state senator, the amendment was a pointed response to a 1986 case (People v. Beardsley) in which the Illinois Supreme Court ruled that what a cop says during a traffic stop isn't private and therefore can be recorded for use as evidence.

The Seventh Circuit ruled (May 9, 2012) that the law "likely violates" the First Amendment, and ordered Cook County to stop enforcing it. See here. Judge Richard Posner of the Seventh Circuit, who has spoken in defense of the law, issued a dissenting opinion; Posner focused his attention on the privacy rights of citizens willing to talk to the police but who might not want third parties to record the conversation.

In March 2014 the state Supreme Court overturned the law as "overbroad". Governor Quinn signed a replacement law on December 30, 2014 that supposedly does allow citizens to record the police.

CRIMINAL v CIVIL law

What the rules are:

What is "illegal"? Are copyright violations "illegal"? Usually, something is "illegal" if it involves a violation of criminal law. Defamation (libel/slander), for example, is seldom referred to as "illegal", despite the potential legal consequences. ("illegal" = expressly against the law, "unlawful" = not authorized by law, but implicitly not in compliance)

Actually, as we discuss copyrights, it is worth noting that essentially all infringement is a civil matter, not a crime against the state (ie it is not "illegal").

Some ways to think about law:
Sometimes the last one above can seem to be at some remove from how the law was actually written.

The courts
    Federal:
            Supreme court
            Circuit courts
            District courts

The Foreign Intelligence Surveillance Act of 1978 created the so-called FISA courts that are charged with issuing warrants for eavesdropping on foreign nationals. The powers of the FISA courts were slightly enlarged by the USA PATRIOT (or USAP AT RIOT) act of 2001.

The FISA court often seems to be a rubber stamp -- out of one to two thousand requests per year, only a couple are denied. However, FISA Judge Reggie Walton has argued that a much larger fraction of requests are modified at the Court's request.

FISA-court decisions are classified. Unfortunately, this means that they often cannot be appealed. Note that classified decisions are very problematic for a democracy, even if you accept that foreign surveillance requires a certain degree of secrecy, as decisions have the effect of creating "case law". Secret decisions cannot be appealed, or even referred to.

If an organization such as Facebook or Google receives a FISA-ordered warrant, it is not clear if the warrant can be appealed to a District Court, even if the warrant is for information about a US citizen who has never left the US. FISA-court rulings can be appealed to the Foreign Intelligence Court of Appeals, FICA.

The NSA's PRISM program consisted, in part, of collecting all phone records of calls originating in the US. The US Supreme Court ruled in 1978 that collection of phone records did not require a warrant. However, in that case the records were being collected on an individual basis, not en mass. The NSA has convinced the FISA courts to authorize the collection of these phone records even when no direct communication with "foreign agents" was involved (eg even when both parties were US nationals). The NSA is supposed to collect these records only for the purpose of archiving them, and is supposed to get additional permission if it actually needs to use the data.

    State courts:
       Note the New York State "Supreme" courts are the ones to hear parking infractions.
    
Judges write opinions, which carry significant weight with other judges (unless they are classified!)

One of the themes of this course is watching how judges and legislators grapple with complex social changes wrought via technology. Sometimes it seems that the courts, at least, are getting better at this, decade by decade. However, note the following:

Wednesday, January 18, 2012: Wikipedia shut down entirely, and Google made their logo go dark, in protest of the proposed SOPA/PIPA laws. These laws have since gone nowhere.

SOPA and PIPA represent an astonishing degree of technological cluelessness. We will revisit these proposed laws later.

File Sharing

First, a clarification: by "file-sharing" I mean the free exchange of music and video files on the internet, without the consent of the content provider. As a widespread service this was pioneered by Napster in 1999, using the peer-to-peer model. Many users downloaded over 56 Kbps dialup lines; downloading a 3-minute 3 MB file took more than twice as long as the song itself. But "free" was tremendously empowering; it allowed people to explore new kinds of music they would never have paid for.

Napster was eventually shut down, in 2002; it took three years because they had a plausible defense. First, the Supreme Court had ruled in 1984, in Sony v Universal City Studios, that a hardware device that enabled copyright infringement could not be banned if that device also had "substantial non-infringing uses". Napster was a service, not a hardware device, but did that matter? Second, Napster argued that they were only a "search engine", connecting users who had a song with those who wanted it. The actual file transfer was strictly peer-to-peer.

After Napster shut down, they were immediately replaced by a multitude of alternative services. Within five years residential internet bandwidth had improved to the point that widespread sharing of movie files, some 200x larger than music files, was commonplace.

Filesharing today is often still completely peer-to-peer, following the bittorrent model, but there is now also a considerable amount of server-based filesharing where one user uploads and other users download. (How do such servers manage not to get sued out of existence?) Either way, the person uploading the file does not receive compensation, either directly or through advertising, although some server-based sharing sites provided some subtle incentives for people to upload (such as making your own downloads faster). Some file-sharing software is advertising-supported, but that's a separate issue.

The Internet has enabled widespread zero-cost file-sharing. The content-creation industry is all riled up by this.

Before the internet, people sometimes shared "bootleg" concert tapes. But these were hard to distribute widely. People also recorded off the radio, but again this never amounted to much. With Napster, two things changed:

Compare this to, say, photocopying textbooks: the copy is a messy sheaf of papers, and (pre-internet, anyway) it could be very hard to borrow a copy of the book to photocopy.

Music was the original digital file-sharing example, but books and films are now subject to file-sharing as well.

It is common to see file-sharing described as theft. There is a similarity, but consider that if Alice steals a loaf of bread from Bob, then Bob has less. Bob may go without. But if Alice download's Bob's song, Bob has exactly what he had before. Bob has lost a potential sale, but maybe Alice wouldn't have downloaded if she had to pay. Thomas Jefferson likened sharing an idea to lighting a candle from someone else's candle:

He who receives an idea from me, receives instruction himself without lessening mine, as he who lights his taper at mine receives light without darkening me.

Sharing an idea is different from sharing a song, movie or book. Ideas in this sense are more like patents. Still, Jefferson's argument is applicable to file-sharing.

SOPA and PIPA

To combat server-based file-sharing, the content industries backed the SOPA/PIPA laws back in 2012.

Wednesday, January 18, 2012:  SOPA/PIPA protest shutdown, by Google and others (including Wikipedia)

Thursday, January 19, 2012: the FBI shut down megaupload.com, a massive file-sharing site; see http://www.foxnews.com/scitech/2012/01/19/feds-shut-down-file-sharing-website. However, megadownload.net is still here.

What do you think of these sites? Should they be allowed to exist? Does the law make it unnecessarily hard to shut them down?

As for SOPA and PIPA, here are a few highlights (mostly from SOPA):
Google settled sometime in 2011 with the US Dept of Justice for allowing "Canadian pharmacies" to advertise through Google. These sites sold legitimate prescription drugs to Americans at reduced rates, but this turns out to be illegal in the US. However, Google may still list such sites in their search results.

What do you think of laws like PIPA/SOPA? They clearly have the potential to have drastic affects on our ability to upload material or to blog.


If seven million people are stealing, they're not stealing.
      - David Post (Temple Univ Law School) [Sometime around 2000?]
   
What did Dr Post mean by that?

While we're on the subject, we must not forget
Property is Theft!
    - Pierre-Joseph Proudhon

Proudhon did also say Property is Freedom.


Questions about what you download (from better to worse?), related to music
  1. Is it ok to listen to the radio?
  2. Is it ok to play the radio at a party?
  3. Is it ok to record off the radio? What about TV?
  4. What about downloading lyrics?
  5. What if I already own the CD? (either lyrics or entire tracks)
  6. Is it ok to download music files off the internet?
Most people would probably be ok with all but #6 here. Note that #2 might be construed as illegal if the party were in any way not a "private home affair". One court did rule against #5, in a lawsuit against mp3.com, but one may suspect the court did not really believe mp3.com was properly checking if patrons already owned the CD.

Some of the first early popular sites on the internet were song-lyric repositories. Sometime in the late 90's most of the originals apparently got cease-and-desist letters; one industry-supported site would display the lyrics but wouldn't let you copy or save them, and the display would vanish after ~20 seconds. (Had the developers not been aware of screen-capture?)


Why wasn't the illegal copying of books through photocopying a major issue?

Why wasn't the illegal production of audio cassette tapes (from LPs, radio broadcasts, and live concerts) a major issue?


Now let's expand the previous list to focus on music-file sharing.
  1. Is it ok to borrow a friend's physical CD?
  2. Is it ok to borrow a non-DRM digital track from a friend?
  3. Is it ok to give a digital copy of a track to a friend?
  4. If one track is ok, what about 20 tracks (a traditional CD's worth)? What about 100 tracks?
  5. Is it ok to let your friend pay you something for the privilege?
  6. Is it ok if you just met your friend 30 seconds ago, for the sole purpose of buying 100 MB of music?
Many people have at least some concerns with #3, though it somewhat depends on who you mean by "friend" (cf #6).

How is online file-sharing different here? Numbers 5 and 6 don't really apply, though what would you say if an online file-sharing service required you to pay the uploading contributors? What if the cloudsharing service charged extra for accounts that got usable bandwidth (so free filesharing was possible, but impractical)? How different would the profit motive make things?

One classic slippery-slope argument is the Bart & Fat Tony d'Amico scene in Simpsons 8F03, written by John Swartzwelder.

 At work, Fat Tony gives Bart a present, in gratitude for his help with the distribution of smuggled cigarettes.
   
Bart: Uh, say, are you guys crooks?
Tony: Bart, um, is it wrong to steal a loaf of bread to feed your starving family?
Bart: No.
Tony: Well, suppose you got a large starving family.  Is it wrong to steal a truckload of bread to feed them?
Bart: Uh uh.
Tony: And, what if your family don't like bread?  They like... cigarettes?
Bart: I guess that's okay.
Tony: Now, what if instead of giving them away, you sold them at a price that was practically giving them away.  Would that be a crime, Bart?
Bart: Hell, no!
Tony: Enjoy your gift.

(Is it legal for me to play this in class?)

One way to look at these slippery slopes is to be very wary of "incremental" arguments in ethics. On the other hand, another view (which we'll come to) is that the real issue with copyright is preserving the musician's ability to earn money, and (perhaps) therefore anything that doesn't actually interfere with that is ok. Which of the items on the list might interfere with the musician's income?


Conflict:
Is downloading the same as theft? DISCUSSION
Software-copying model: people who illegally copy software often would never buy it; they're just "collecting". No sale is lost in these cases.

Lost sales: if you build a better mousetrap, my mousetrap business may lose sales. Lost sales -- or other harm -- is NOT necessarily wrong!!

Keep this "harm is not wrong" idea in mind.

Here's a related issue: how much should netflix and hulu charge a month for streaming?


How does shifting from music filesharing (arguably a legitimate fan response, and musicians may make even more money from concerts) to movie filesharing change things?

How the music and movie industries sees it

Make no mistake; many musicians and essentially everyone in the music industry above the level of musicians sees music as a business, and virtually everyone in the movie industry sees it that way. Many people go into music with the express hope of becoming wealthy. While hard data is difficult to come by, I suspect that a majority of those in the music industry believe they have a "natural right" to the music-related content they create.

Bear in mind that there are many people who have had some idea and feel some "ownership rights" to their idea. Many people, for example, feel that they are "entitled" to profit from a business idea they had, or at least are entitled not to have someone else profit off their idea by copying it. Example: the Winklevoss twins and Facebook. Many of these people are simply engaging in wishful thinking.

"Intellectual Property"

[Why am I using quotation marks here?]

Can you own an idea?

What is the LEGAL basis for music protection? Copyright.

Copyright is sometimes referred to as a form of "Intellectual Property" (along with patent rights and some trademark and trade-secret rights). Is there such a thing as "Intellectual Property"?

     Intellectual property is the work-product of the human mind.  [Halbert & Ingulli, CyberEthics, 2004]
        
How about
        
        IDEAS are the work-product of the human mind
        
Can ideas (including music) be property?

What is property? (Legal and social definitions)

"the right of use, control, and disposition" (topics.law.cornell.edu/wex/real_property)
the "expectation ... of being able to draw such or such an advantage from the thing" in question [Jeremy Bentham, quoted in en.wikipedia.org/wiki/Property_law]

Three classes of property:      
Note that "intellectual property" can certainly meet Bentham's standard of "expectation... of being able to draw .. an advantage".
       
Traditionally, "real property" is considered much more tangible. Nobody can walk off with it, for example. However, easements are a form of intangible real property right.

Intellectual property is a form of abstract property. Here are some other forms of abstract property:
Natural law notion of property: you have a right to things you have created with your own labor (eg things you have made). You have a natural right to things you have earned. (Proudhon, above, was not a big believer in this concept.)

Classic proponent: John Locke 1632-1704 (mentioned in Baase p 33)

The natural right to real property (land & buildings) is slightly hazier in theory, but much more solid in practice. The frontier version of the theory was that you have the right to the land you have settled, developed, and farmed; the practice is that you have the right to use your land as you see fit (subject to zoning, water, and environmental laws).

The big question: Do we have natural rights to IDEAS?

Tradition goes both ways. Ideas meet the Lockian test of things created with your own effort, BUT many ideas have also traditionally been regarded as in the "public domain".

One alternative to natural rights is sometimes referred to as "legal rights" or "social rights": rights are assigned by law for a social goal.

Another alternative is the idea of intellectual commons: that ideas are held in common for the benefit of everyone, and that no one has an individual right to an idea. Here is a quote from Jean-Jacques Rousseau on that:

The first man who, having enclosed a piece of ground, bethought himself of saying "This is mine," and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: "Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody." [emphasis added - pld]

But Rousseau clearly did believe in civil society.

Who is copyright for?

What is the purpose of copyright? Who is to benefit from it? There are two theories:

The incentive model does not make filesharing legal, but it may expand our view of who is being harmed by infringement. It may also expand the scope of what copying is not considered infringement (eg Fair Use).

United States Constitution

US Constitution states (the "copyright clause") (italics added by me)

Article I, Section 8 - Powers of Congress
       
...

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

...
       
What is "limited"?

More deeply, what does this say about the nature of our "right" to our works and inventions? It seems clear here that the writers of the constitution did NOT see this as a natural right. The justification for the right is because it promotes a societal goal, the Progress of Science and useful Arts.

How can something be property, if it goes away? People ask this about copyright in the other direction, quite seriously, as if it should be obvious that copyright should be perpetual.

The word "property" carries all sorts of implications to the non-lawyer. But how can a music track be property if you can download the song and I still have everything I had before?

Under the law, the notion of "intellectual property" makes perfect sense; there are lots of limited and/or intangible forms of property. But mostly nobody but lawyers is familiar with these. To most people, the word "property" suggests something that is MINE, like the $5 bill in my wallet (which, alas, I spent).

Property suggests certain rights:

What about this "limited-time" property?

The property-rights view suggests that the limited-time model is a huge concession.

By comparison, the intellectual-commons view suggests that any rights to the creator are a concession.
   
Using the term "intellectual property" to describe ideas introduces BIASES.

What about "FAIR USE"? This is the notion that some copying is legitimate without any obligation to the creator. The original notion was to allow excerpting for quotes and reviews. The use should be relatively noncommercial (educational was best), and should not diminish the market for the original. We'll go into details later.

Summary:
  1. Intellectual Property is a legitimate concept.
  2. It is well accepted by lawyers.
  3. However, lawyers also automatically understand that it is different from real or personal property.

  
Is it ok to download Game of Thrones episodes? (The median cost per episode is somewhere around $10 million.)

Another take on this might be to ask whether music as "intellectual property" can survive, given that out in the real world huge numbers of people see nothing wrong with file sharing, or at least with file sharing so long as other people are doing it too.

Intellectual Property and the Free Market

In a completely free market, I would sell my goods (chickens, say) for whatever I could get, and buy other things. Could shareable music/movie files exist in such a market? Once I sold one, the buyer could resell for next to nothing (or literally nothing). The supply, in classical terms, would be infinite, leading to a price of zero. Exactly as is happening in the real world.

This point is related to Stewart Brand's famous aphorism, "information wants to be free". The point isn't that information should be free, it's that, in the high-tech world, it ineluctably will be free, absent a strong regulatory system.

Nor is the point that newspapers and magazines should place their content online without charging for access; here is Brand's full quotation (from the pre-Internet era!):

On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.

The first part means that information is expensive to obtain and produce. But, like it or not, the information-free side seems inexorably to be winning.

Here are some concepts for discussion; the italicized claims are meant as points for debate.

1. Any free market requires some sort of legal system to keep people from stealing my chickens rather than paying. Copyright is no different.

Is this true? If the legal system ensured only that all transactions were voluntary (the classic-free-market position), we would still have a music/movie price of zero. There is a big difference between forbidding involuntary transactions (that is, physical theft), and regulating voluntary ones. More generally, we could enforce any buyer or seller terms on the immediate exchange of every transaction, and still have a music/movie price of zero. If the seller demanded that a buyer agree to a long-term license restriction, that would be beyond the scope of the immediate exchange.

[Note, while we are on the topic, that this is a good example of the importance of the legal ground-rules on economic activity.]

Bottom line: Point 1 is problematic. Copyright is different.

2. This argument shows that intellectual property can exist only in a regulated economy; that is, intellectual property only exists once the market rules are defined. Another example is patent terms: the value of a patent only exists once the length of time the patent lasts is established.

The argument, in other words, is that IP can exist only to the extent our markets have been regulated. For true Chicago-school economists, all regulation is suspect, but note that many conservatives appear to feel that IP "property rights" run deeper than simple market regulation. And aren't all real markets subject to some degree of regulation? And aren't contemporary markets subject to a considerable degree of regulation?

Bottom line: Point 2 is probably correct, but it's not necessarily a bad thing.

3. Real markets are regulated in all kinds of ways, so this is not a meaningful distinction (compare with #2)

Intellectual Property can only exist once the market is created; physical property exists beforehand and Locke argued that physical property rights exist beforehand. But why should that be a meaningful distinction? Do natural rights matter? (It is certainly true that real markets are subject to many regulations, but the question is whether that is relevant to the alleged distinction between Intellectual and Lockean property.)

Bottom line: Point 3 is reasonable, but most of us have some belief in "natural rights".

A variant might be regulation in support of IP is a hallmark of an advanced society.

4. The Tragedy of the Commons dooms IP.

The idea of the Tragedy of the Commons is that there is some shared resource -- a common pasture, the atmosphere, or the Internet -- and it is in society's best interest if everyone abides by a set of rules: no overgrazing, no excess CO2 emissions, no free exchange of copyrighted information. Alas, it is in everyone's individual interest to violate those same rules. So, acting rationally, everyone does.

That is, copyright is in our mutual long-term interest. But meaningful enforcement is difficult, and so we have to each agree to abide by copyright law. At first we might each abide by our agreement, in the interests of maintaining the music economy. But it is always in our short-term best interest to ignore our promise and download privately. This makes the music and movie industries like a "commons": each is supported by individual contributions (the agreement not to share files) but it is in each individual's best interest to "cheat".

Bottom line: time will tell on this one.

Even lower line: after thinking about free markets this way, do you still believe that "conservatives" favor free markets, while "liberals" favor regulation?


Regulation

Intellectual property requires market regulation, as we just argued above.

How much regulation is too much? How onerous is regulation to support intellectual property to the rest of us? Some examples:
  1. Rules on playing music at public events (including nonprofit events)
  2. DRM on some devices
  3. Difficulty transferring your movie from one player to another
  4. Rules against photocopying
  5. The MPAA (and formerly the RIAA) filing lawsuits
  6. Restrictions on creative freedom and music sampling
  7. Restrictions on websites' accepting user contributions
  8. Loss of privacy through logging of our web browsing by ISPs (this is hypothetical, at this point)
  9. Loss of Internet connectivity (eg "three strikes" laws)
  10. Difficulty obtaining scientific papers
  11. DVD country codes

Most of the above are civil restrictions, not actually criminal. However, 8 and 9 may become codified into criminal law at some point.


The Napster Defense and the Napster Model

Napster was the original music-sharing website. Their legal defense was that they did no actual copying; they merely connected a user who wanted a song with a user who had it in their online library. In that sense, they were "only a search engine".

What do you think of that?

What would happen to music if all file-sharing were free? One idea is that the "Napster model" would emerge: musicians would get paid for performances, but recordings would all be free.

Could this model support enough musicians that there would still be new music to listen to?

Napster eventually lost their case, but not quickly; they were then replaced by multiple different music-sharing services: kazaa, morpheus, limewire, gnutella, ....

The Music Industry

Let's start with a couple quotes from the sheet-music industry. Here's the copyright notice on sheet music from Unity Music Press:

Copying music without permission of the publisher is wrong.
It hurts the composer, the publisher, and ultimately YOU. The money earned from the sale of this publication is used to make new music available. If you photocopy this music, YOU are making it more difficult for composers and publishers to produce new music for you to use and enjoy.
Don't photocopy this music without permission of the publisher.

Note the "utilitarian" perspective here: if we don't adhere to copyright rules, we'll only be hurting ourselves in the future.

Lorenz Publishing includes the following line:

If it were not for this [copyright] law and public respect and acceptance thereof, the publication of material such as this would be financially impossible.

What do you think of the "public acceptance" of copyright law as far as filesharing is concerned?

What do we owe the music industry? For many people, it matters whether we're talking about individual musicians, or about recording-company executives. Ignore that for now; assume if necessary that most of the money goes to musicians.

Some arguments in favor of file-sharing:
What are some arguments in favor of music-industry rights? Ultimately, they usually are in one of two categories:
  1. The music people have a right to the opportunity to profit from their work
  2. If file-sharing takes over, the music industry goes away, and we'll have less to listen to
Which of these is the more important? Is it all about our obligations to musicians, or about our own future self-interest?

In other words, who is copyright for?

The two approaches above have very different bases: the first is about "natural rights" and our fundamental duty to respect them; the second is about pragmatism and our own long-term self-interest.

Here's another take on this idea:
  1. Musicians have a fundamental right to profit from their work and creativity, and copyrights enable this right. Music copyrights are about protecting a basic form of ownership to which musicians are entitled.
  2. Music copyrights are there simply as a pragmatic gesture to encourage musicians, so there will continue to be music for all of us to enjoy. Music copyrights are about our future self-interest.
Despite the apparently clear distinction between fundamental duty and pragmatism here, it can be hard to tell.



A common argument is that it is wrong to engage in filesharing "because you haven't paid for the content" (below)

What kinds of content can you get for free?
Are these proof that you don't always have to pay for content, or are they just special cases, involving either restrictions or hidden payment?

Two Justifications for Copyright

Above we have considered two basic justifications of copyright:


1. It exists to establish the fundamental property rights of creators

2. It exists to create an incentive for creators to benefit society; copyright law protects us.


There are two major corresponding schools of thought on legal interpretation of copyright:
  1. Copyright exists to define property rights for authors and other creators. Exceptions to copyright (Fair Use, limited time) are to be construed narrowly. In cases of conflict, the rights of creators are assumed to dominate. For example, while in the music industry copyright is primarily focused on recordings themselves, it applies just as strongly to, say, lyrics.

  2. The public has a major interest in copyrighted content. Copyright law serves to create several public rights. In cases of conflict, the claims by the public are to be taken very seriously. To close a form of public access, content creators need to prove not that they would lose money but that they would lose so much that the incentive to create new works would be diminished. For example, while allowing the recording of TV shows off the air might violate the letter of copyright law, it does serve the public interest and may not violate the spirit of the law.

In deciding which of these we believe, it might help to think of how we would feel if some relatively minor component of music copyright -- sheet-music sales for private use, for example, or the playing of prerecorded music at non-profit events (like the Macarena at Girl Scout meetings) -- were to be deleted from copyright coverage. Such an action would surely not endanger any individual copyright holders, so if we object, it is more likely that we feel musicians are entitled to the fruits of their labor.

Along the same lines, if filesharing is stealing, who is being stolen from?

The conventional answer is that the theft is from the creator. What other answers are possible? Do you believe them?

Suppose someone counterfeits a $20 bill. Who is being robbed? This is complex; is the analogy to copyright violations apt?

Finally, when we see someone's creative work being ripped off, which do we think?

In parts of Europe, creators have moral rights to their works. These are copyright-like rights that cannot be sold or taken away. They don't cover royalties, but they do cover someone's alteration of the original work.


When thinking about moral rights in the music world, bear in mind the following "quote", widely found on the Internet and attributed not quite accurately to Hunter S. Thompson:

The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs.

There's also a negative side.

(Thompson was actually talking about "the TV business", and he did not include the second line. But still.)

Are we owed money when someone takes our idea?

http://xkcd.com/827.

What ideas, if any, do we have to pay for? What forms of "intellectual property" are really property?
Should Mark Zuckerberg, founder of Facebook, really have to pay Cameron and Tyler Winklevoss for the "idea" of Facebook?

Is copyright an example of the broad right we have to our own ideas, or is it a special case that applies only to "creative" works? And if the latter, why is it a special case?

Copyright applies to a broad range of creative works: written works, music and movies, of course, but also  photographs, paintings, characters in written works (eg Harry Potter), architectural plans, and (with certain limitations) designs of household items, clothing patterns, and craft projects. Sometimes even a musical style can be protected.

Business ideas seldom fit this "creative" model, though we will late in the semester address business-method patents.


Here is a tabular approach to the two contrasting approaches to copyright and file-sharing

Copyright is an expression of a fundamental obligation we have to artists (deontological)
 Copyright exists solely to create an incentive for artists to produce new works (utilitarian)              
Issues
  • What exactly is the obligation here?
  • Why does the obligation often seem related to return on investment?
  • Does this obligation apply to the use of ideas?
  • Does this obligation extend to content-industry executives?
 Issues
  • If copyright is purely Utilitarian, why do we often feel that some fundamental duty is at stake?
  • Why do we often feel that filesharing involves taking from musicians, rather than from society at large? (This is less clear for film directors.)
File sharing is taking something from the artists
 File sharing might be taking from all of us, collectively

Harm again

In the ethical theories below, a common principle is that we should not harm others. How can we reconcile this with the idea that it may be entirely fair for a business to, through competition, cause someone else's business to falter or even fail? It is also difficult to find fault with a consumer's decision to stop renting movies from Blockbuster in favor of online viewing via Netflix, even though this has led to Blockbuster's current financial difficulties.

One approach here is to say that marketplace harm is usually unintended, or, at the very least, is impersonal. Even this, though, is sometimes unclear. As we will see in the I4I v Microsoft patent case, Microsoft took actions to improve MS Office with the specific intent of converting some of I4I's customers to Office: "We saw [i4i's products] some time ago and met its creators. Word 11 will make it obsolete..." [reference in the I4I materials, later]

Another idea is that we're all doing our best to succeed in the world, but the ups and downs of individual markets are ineluctable, unavoidable. We cannot predict them or understand them, and so they are best understood as driven by external forces. Still, this sidesteps the fact that, for many people in the business world, they are deliberately attempting to capture some of their competitors' market share.

Yet another approach is to say that if we out-compete someone, we haven't really harmed them. Most laid-off workers would probably disagree, but that does not mean they are right.

Ethical Paradoxes

The literature on ethics is filled with what are sometimes called "ethical paradoxes":

The Trolley Problem (http://en.wikipedia.org/wiki/Trolley_problem)

A trolley is running out of control down a track. In its path are five people who have been tied to the track. Fortunately, you can flip a switch, which will lead the trolley down a different track to safety. Unfortunately, there is a single person tied to that track. Should you flip the switch?

See here for one perspective.

The Cave Problem

A large person is stuck in the mouth of a cave. His five smaller companions are behind him, inside the cave. The tide is coming in, and will shortly drown them all. The stuck person could be removed if he were killed.

Some more (many superficial) examples can be found at http://www.quose.com.

The Trolley and Cave problems are, to an extent intended to demonstrate a difference between Deontologists and Utilitarians (below). For Utilitarians, sacrificing one to save five is a clear societal win; for Deontologists, taking an overt action to sacrifice one is often not acceptable. However, these problems seem grimly remote from ordinary experience. File-sharing is not, and hence makes a more everyday example.

Is file-sharing actually a paradox? That is, does it represent an ethical issue for which we do not have a settled, universally accepted answer? If not, why not?

Here's a version of the Trolley Problem for those tired of it:

A trolley is running out of control down a track. In its path is Immanuel Kant. Fortunately, you can flip a switch, which will lead the trolley down a different track where it will strike Jeremy Bentham. What would Kant say is the ethical thing to do?

Kant is best known for his deontological approach, under which flipping the switch would generally be considered wrong. Bentham is the founder of utilitarianism (then consequentialism), in which flipping the switch is ok if the result is of overall benefit to society.


Ethical theory

(often inseparable from Political & Justice theories)

Deontological Ethics

The root deon means "duty". Deontological approaches are based on the enumeration of fundamental, universal principles.

Immanuel Kant [1724-1804]
Kant's categorical imperative: all our principles should be Universal; that is, if it's ok for us, personally, then it must be ok for everyone. Also, whatever it is must be ok in all contexts, not just selectively (that is, rules apply universally to people and universally to acts). We are to choose ethical principles based on this idea of universality.

This is close to, but not the same as, the Golden Rule: "do unto others as you would have them do unto you [Matthew 7:12]" [NB: is the Bible in the public domain?]; outcome might be the same, but the Golden Rule doesn't have the explicit notion of universality.

Kant also said that people should not be treated as means to other goals; they should be the "endpoints" of moral action. Kant also famously claimed the two principles (universal and non-means) were THE SAME.

Kant is often regarded as a Moral Absolutist, a stronger position than deontology necessarily requires.

WD Ross [1877-1971]:
more modern deontologist
    Utilitarianism is wrong; Ross identified "seven duties" we have to each other:
  1. fidelity [not lying, keeping promises]
  2. reparation [making up for accidental harm to others]
  3. gratitude
  4. non-injury [do no intentional harm others; includes harming their happiness]
  5. justice [or prevention of harm by others?];
  6. beneficence [do good to others. How much good?]
  7. self-improvement [perhaps "taking care of oneself"]
Is this list complete?

But perhaps the biggest problem for deontologists is what do we do when rules conflict? Ross had a theory for handling this, though it is not clear how effective it was.

Abortion: duty to the mother v duty to the fetus
This would be the issue facing someone trying to use ethics to decide whether to support or oppose a law banning abortion.

Copyright: duty to copyright-holder v duty to society
But the rights of the copyright holder and the rights of society are, to a significant degree, not in conflict!

What about one's personal duty, when faced with the choice of downloading music?

Problems with deontological ethics

Utilitarian (Consequentialist) ethics

Jeremy Bentham 1749-1832 & John Stuart Mill [1806-1873]:
Bentham named his theory Consequentialism: the good is that which has the best consequences, in that it 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.) (One approach to this problem is to look to the future: in the long run, if we seize the factory, no one will build another, so seizing the factory harms everyone. But this doesn't always resolve the situation.)

Mill wrote a book, Utilitarianism, tuning some of Bentham's ideas. We will mostly use Mill's name for the theory. He was much less focused on simple consequences than Bentham. Bentham thought all forms of pleasure were comparable; Mill felt some were "better" than others (hence the focus on "utility"). Mill also recast the idea as maximizing happiness rather than "pleasure". Describing the social benefit as utility has subtle implications versus Bentham's focus on "consequences".

For one particular take on Consequentialism vs Utilitarianism, see No son of mine is going to be a Benthamite Utilitarian!

For a somewhat peculiar take on the differences between a deontological approach and a utilitarian one, see https://www.vox.com/future-perfect/2019/8/27/20829758/altruism-morality-molly-crockett-study-dating-do-gooders. But the real issue here is the extent of someone's concern for others, that is, charity. Both deontologists and utilitarians believe in charity.


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 (though see Rousseau's rather odd quote above).

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. (Note that this approach pretty much demolishes the argument that ethics are not important in business.)

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 Utilitarianism

zero-sum Utilitarianism: The idea is that, notionally, we score everyone's benefit or damage numerically, and add them all up. The option with the best total score wins. (This is an abuse of the term "zero-sum game", in which all total scores are equal and so any advantage for one participant must entail a concomitant reduction for another.)

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

Of course, there is also

The needs of the many outweigh the needs of the few
- Spock, Star Trek II: The Wrath of Khan

Finally, some times we may just add up the current scores, and other times take into account future scores.

As for Utilitarian scores, pleasure and happiness are traditional, but both are suspect.Perhaps long-term economic output? Perhaps the aggregate sense of justice?

min/max Utilitarianism: 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 Utilitarianism:  To decide for or against a rule using Utilitarian reasoning, you must be a disinterested party: you must NOT stand to gain personally in any significant way. Rawls' approach is an example of this. How does this shift our perspective in the copyright debate?

For that matter, who is a "disinterested person" in the copyright debate?

act Utilitarianism: 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 Utilitarianism: 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 Utilitarianism generally fares better under critical analysis than Act Utilitarianism, 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 Utilitarian 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 Utilitarianism 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.

Problems with Utilitarianism

Mostly we are going to ignore these.

Famous examples

Compare justifications of lying

    Utilitarian: lying 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
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.

The US Constitution language of the copyright clause is clearly focused on overall benefit to society; that is, it explicitly takes a Utilitarian approach.

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 an 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.

Getting something for nothing is a warning: you may be doing something wrong (or foolish). But it is not an absolute sign of error.

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, 4e p 33 / 5e p 37]: Is copyright a PROPERTY right?
    
"Natural" rights: special case of liberties (negative rights), like life and 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.

Into what category would you replace the right to bear arms?

Religion

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

The Ten Commandments are very deontological. They are fundamental duties, and they are expressed as universals.
 
In the Torah (Leviticus and Deuteronomy) there are some 613 Mitzvot , or rules; for example, Leviticus 11:26 on the eating of pork:

All animals that divide the hoof but it is not completely split in two and do not chew the cud are unclean to you; anyone who touches them becomes unclean

Some of these, such as the one above, are not very universal. One interpretation is that they are not supposed to be; rather, they are "symbolic", creating constant reminders in daily life of ones duty to God.

The Golden Rule [Matthew 7:12] is often seen as central to Christian ethics:

In everything, treat others as you would want them to treat you

However, this is closely related to the early Old Testament "you must love your neighbor as yourself" [Leviticus 19:18]

The Golden Rule is more utilitarian than the Ten Commandments, but utilitarianism is nonetheless not the whole story. To a utilitarian, you would treat others well because that is of overall benefit to society; many who adopt the Golden Rule for religious reasons believe that they have a duty (to God) to treat others well. The Golden Rule does identify such a duty, but any actual details of how we are to carry out this duty are grounded in utilitarian pragmatism: how we would feel if our action were to be applied to us.

The Golden Rule is sometimes formulated as

Do unto others as you would have them do unto you

An alternative approach is the Silver Rule:

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

The Jewish scholar Hillel the Elder, supposedly born 110 BC but also supposedly overlapping with Jesus, gave the following version of the Silver Rule 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. 

The prophet Muhammad also gave a version of the Silver Rule: Hurt no one so that no one may hurt you. [The Farewell Sermon, 632 CE].

Some people call the Golden and Silver Rules reciprocity ethics. However, a common alternative interpretation is as a way of understanding how to treat others, even if they do not reciprocate. You should treat other people as if they reciprocated, and you should treat them that way even if they do not. This approach is particularly strong in the explanation of the Golden Rule in Luke 6:31-35:

Treat others in the same way that you would want them to treat you. If you love those who love you, what credit is that to you? For even sinners love those who love them. And if you do good to those who do good to you, what credit is that to you? Even sinners do the same. And if you lend to those from whom you hope to be repaid, what credit is that to you? Even sinners lend to sinners, so that they may be repaid in full. But love your enemies, and do good, and lend, expecting nothing back.

This is a fairly explicit rejection of reciprocity.

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 Silver Rule doesn't add that we also have to be good to them. This non-harm idea was clearly expressed by the time of ancient Athens (~500 BC).

Note that the Silver Rule does in fact really come down to"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, though this analogy isn't quite as exact.

The Golden Rule is sometimes seen as requiring us to give actively to others, beyond merely not harming them. In this, it can be seen as being a combination of the Silver Rule with a duty of something like service to others.

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

Here are a couple well-known criticisms of the Golden Rule. First, it does not provide much of a way to find out whether others in fact want to be treated the same way you want to be treated. If you are fond of roast beef, and offer it to others, what if they reject it because they are vegetarian? However, if the rule is applied primarily to the "big picture" issues of fairness and consideration, perhaps this is less relevant. Second, the Golden Rule (and the Silver Rule) would seem to preclude punishment of wrongdoers: how can a judge, who feels being denied freedom is a form of harm, ever send a miscreant to jail?

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 that such hacking was still wrong.

Law v Ethics

Baase 4e p 38 / 5e p 41

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, 4e p 32 / 5e p 34, 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. As an example, do we really mean that murder and genocide 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?

In his online lecture on Nietzsche, Prof Rick Roderick put our deep lack of belief in relativism this way:

No-one has ever – or does now – hold the view that every view is as good as every other view.

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 deontologists seem to suggest that part of an ethical theory is how it affects everyone; that is, it is not just up to you.

Intellectual Property revisited

Here are a few references to 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.

4e p 181 / 5e p 195:
When we buy a movie on disk or via streaming video, we are buying the right to watch it, but not the right to play it in a public venue or charge a fee. [license/copyright strings attached]
    
4e p 181/ 5e p 195: 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
    
4e p 182 / 5e p 196 [is the future of the laws on physical property in doubt?]
Nicholas Negroponte, founder, MIT Media Lab; founder, One Laptop Per Child; goal: $100 laptop

Copyright law will disintegrate
       
Pamela Samuelson, Cornell Law professor, writes Legally Speaking column in Comm. ACM

New technologies have been disrupting existing equilibria for centuries, yet balanced solutions have been found before.

But what if the "balanced solution" is the Napster model?


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 file-sharing

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

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

What would this table look like for the movie industry? (There are essentially no "unsigned" filmmakers.)

Utilitarian perspective

A utilitarian would probably use 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; while that is an important consideration, other utilitarian analyses might put a different weight on the future.

Someone with a deontological perspective probably would NOT consider these tradeoffs, if they identified not copying music as a fundamental duty.

The idea that those with a deontological perspective would favor strict copyright rules, while those with a utilitarian perspective would favor looser, more society-friendly rules, is definitely a bit of an approximation. You can be a strict Kantian and believe we have a duty to obey all laws, including copyright laws, but nonetheless accept that copyright itself is a Utilitarian compromise. And you can be a hard-core Utilitarian, and yet believe that strict copyright rules are the best way to create the copyright incentive.

But, with that said, there is still some reasonable scope for thinking that Utilitarians who understand the incentive/compromise nature of copyright law are more likely to believe that society at large has a claim to copyright permissiveness, while those who take a deontological approach to copyright itself are less likely to feel that way.

signed v unsigned musicians and copyright

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

A deontological perspective on plagiarism

This one is easy. It is wrong to present someone else's work as your own, period. Even a Utilitarian analysis here is hard-put to find legitimate exceptions.

A deontological perspective on copyright

This is trickier to argue than it might seem at first; it is particularly hard to justify Fair Use. Here are three options:
  1. Before using anyone else's idea (or creative work), we must have their permission
  2. We must respect the artist's right to attempt to profit from their work
  3. Using someone's copyrighted work is using their property
  4. We must respect others, and be fair and honest when dealing with them

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? What if someone else's song inspires you to create your own musical piece, only distantly related to the first? For the second, "profit", option, do we allow artists to declare retroactive restrictions? Should every new use require new permission (probably with new fees)?

There was a US production of Samuel Beckett's play Endgame back in the '80's; this play is perhaps best known for two characters that live in garbage cans. Beckett's original called for an empty stage; the director chose something different. From Wikipedia:

In 1984, JoAnne Akalaitis directed the play at the American Repertory Theatre in Cambridge, Massachusetts. The production ... was set in a derelict subway tunnel. Grove Press, the owner of Beckett's work, took legal action against the theatre. The issue was settled out of court through the agreement of an insert into the program, part of which was written by Beckett:

Any production of Endgame which ignores my stage directions is completely unacceptable to me. My play requires an empty room and two small windows. The American Repertory Theater production which dismisses my directions is a complete parody of the play as conceived by me. Anybody who cares for the work couldn't fail to be disgusted by this.

Should playwrights get to dictate, under copyright law, the terms and conditions of production? Should directors ethically feel bound to abide by such terms and conditions?

The third option (championed by Adam Mossoff, who spoke at Loyola in Spring 2014) is relatively straightforward, but do we really believe our copy of a book or film is really the property of its creators? If we do not, the real issue is an implicit restriction on usage. Where, then, does this leave Fair Use and copyright expiration? Also, under what circumstances is it ok to make use of someone else's idea? This is not a minor issue; social progress depends on building on the works of others.

The fourth one sounds good, but doesn't really address copyright.

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 can be hard to discern fundamental duties that are substantial enough to imply our financial obligation.


One approach is to consider downloading to be a form of theft. This seems to be where Michael Eisner was coming from in his June 2000 statement to Congress [ edited, from Halbert & Ingulli 2004]. He writes, "theft is theft, whether it is enabled by a handgun or a computer keyboard". Does this really work for copyright?

But here's another, contrary, 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)

In section 4.1.5 (4e and 5e), Baase states

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

But that's the "to sweat or have not" argument. And she then adds:

On the other hand, there may be situations where copying does not seem wrong.

The first is as good a statement as 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.

What do you think of the "on the other hand" followup statement?

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.

As an example of the enforcement of strict rights, the estate of Marvin Gaye sued Robin Thicke and Pharrell Williams for the song "Blurred Lines". See blog.oup.com/2015/03/blurred-lines-copyright-infringement. The problem is that Thicke and Williams didn't copy Gaye's melody, or chord progressions, or lyrics. What was copied was (in the defense team's words) the "feel of an era". Can you really copyright the 70's? Or is there something more specific at stake?

The Ninth Circuit upheld the trial-court verdict in favor of the Gaye estate. As for copyrighting a "feel", the court wrote:

"[m]usic . . . is not capable of ready classification into only five or six constituent elements," but is instead "comprised of a large array of elements, some combination of which is protectable by copyright".

Generally speaking, the court seemed to think that more had been copied than simply the "feel of an era". That said, the case represents a significant advance in copyright-owner rights, as no specific use of any one musical component, and no specific finding of overall similarity, is necessary.

It is worth noting that Thicke and Pharrell failed to raise the Fair Use defense at the trial. We will see this later in other cases.


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. And, in particular, that if copyright ownership is defined by law, then that same law can establish limitations on copyright.

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

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. Once upon a time http://www.textbooktorrents.com was such a site, though it has been "commercialized" since. Was this about book-file-sharing? Or book-file profit?

All this has the textbook world very worried. Free textbook filesharing is also on the rise.

For-profit infringement has been creeping into music and film, too. Initially these were traded for free, but now there are large filesharing services with a business model something like the following:
All this means that in practice the site is directly profiting from infringement. But to close the site down, goes the argument, the above actions may not be enough!

Legally, when the copies are definitely 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 content. Then, the site's bank account can be frozen or seized.

Here are a few 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, instead of downloading it?
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? Next week we will talk about the Michael Eisner statement (at the top of this page); did Eisner suggest 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?


How does iTunes' per-track pricing change a 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 is hard to give personal examples that apply to average people.

Is going back to the old way an option?

Ethical arguments about copying

Baase section 4/5e:4.1.5:
  1. I can't afford to pay for the content
  2. It's ok to take from large, wealthy corporations. (Baase dismisses this. Is there any underlying justification?)
  3. Because I can't afford content, Big Content loses nothing when I download instead.
  4. I'm only doing this for a friend, out of generosity
  5. personal file-sharing is so small as to be inconsequential.
  6. Everyone does it.
  7. 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)
  8. I'm posting as a public service, or to address some important social goal, not for sharing per se. (Legally, this is called transformative use)
  9. I'm only downloading isolated tracks, not entire CDs
  10. This is Fair Use.
  11. I would not be buying it, regardless (variant of #1)
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?