Ethics of Copyright and Intellectual Property

1. Ethics of Copyright and Intellectual Property A presentation based on the works of Michael C. McFarland, and Shelly Warwick. Presenters: Mark Stahl Justin Grosclose Lawanda Wilson Chris Childers

2. Where To Begin • Present varying ideas on rights, property, and intellectual property. Why Do We Care? • Copyright law, and ideas of ownership influence a large number of elements in our daily lives.

3. Mommy, where do rights come from? • Jeremy Waldron summarizes rights theory to be of two kinds: • Rights of perceived intrinsic quality (natural rights theories) • Rights based on social value (utilitarian theory of rights) Theory of Rights, 1984

4. Waldron acknowledges Jeremy Bentham as the key liberal theorist of natural rights. • Bentham derives all rights from the right of subsistence and viewed rights as the child of law through the marketplace. • Ronald Dworkin and Wesley Hohfield are noted as proponents of utilitarian theory of rights. • Dworkin views rights as the legal means for achieving the values of society • Hohfield sees the modern view of rights being created by law and stem from no natural source.

5. Most rights discussions echo John Locke’s position that certain rights are natural, in that they exist prior to the State and whether the State recognizes them. • This ideology had a great impact on the founding of the United States and more specifically the writing of the Declaration of Independence. • I imagine most of feel this way today.

6. Property Rights • Fred Cohen defines property rights as the relationship between individuals in reference to things. • However, Cohen points out that private ownership often encourages the sacrifice of long-term social interests for immediate gain. Transcendental Nonsense and the Functional Approach (1935)

7. Waldron presents a detailed discussion of property and rights, and poses two questions: • What individual interests are served by the existence of private property? • Are any of these interests so important from a moral point of view that they justify a government duty to protect them? • Waldron concludes that there are major defects in the utilitarian approach to property and rights. The Right To Private Property (1988)

8. Harold Demsetz supports the utilitarian theory of property and rights. • Defines a property owner as one who “… possesses the consent of fellowmen to allow him to act in particular ways.” • Defines property rights (in short) as a way to specify how people may be harmed or benefited, and who is responsible for modifying the actions taken by others, and are used to unify the people and provide a framework for adjusting to change as social values evolve. Towards a Theory of Property Rights (1967)

9. With the given theories, a State has the role of adapting one of these approaches to rulemaking: • Support the expectations of those who have property • Follow an over-riding principle • Strive to achieve a desired end (policy) • For simplicity a State could adopt one policy, but it seems that all three are utilized.

10. Copyright Theory • Two views dominate copyright theory • Copyright as natural “right” based on labor (John Locke) • Copyright as natural “right” based on personality (Georg Hegel)

11. Two Views of Copyright • Labor • This view has been asserted since the birth of copyright in England and of those that feel that labor is the key element in determining the control of works. • Personality • Treats copyright as state policy to achieve set goals, such as increased creativity, or progress in the useful arts.

12. Another Approach • Moral Rights • Copyright to protect the rights of the author to be identified as the creator, and prevent the works from being altered without the author’s consent. • France and the Scandinavian countries are associated with moral rights. • The U.S. and England have long been associated with labor right.

13. The 1790 Copyright Act • Article 1 Section 8 of the U.S. Constitution states “promotion of progress and science” as a basis of ideals for the Act. • These rights lasted 14 years. • Granted to authors the right to print, reprint, publish, and vend. • All of the rights not granted to authors were reserved to the public. • Multiple forms of derivations like abridgements and translations were considered uses of the work and not copies.

14. Before the Copyright Act of 1976 • Authors were granted the right to create translations and abridgements in 1891. (Stowe) • This ruling required the “revision” to be reprinted in the US. • The UCC in 1951 and the Berne Convention in 1989.

15. The Copyright Act of 1976 • Protects “all original works of authorship fixed in a tangible medium of expression” • Grants the far more rights to authors. • 4 years after this act, software became protected under this act • 4 years after that, semi-conductor designs became protected. • This act left room for new types of media.

16. The NET, SBCTEA, and DMCA • The No Electronic Theft (NET) Act, provided more financial gain for authors • The Sonny Bono Term Extension Act (SBCTEA) extended the life of copyright by 20 years • The Digital Millennium Copyright Act made it a crime to go around technological protections

17. What Copyright Doesn’t Cover • Protection is not granted to ideas, processes, procedures, systems, methods of operation, concepts, principals, discoveries, short phrases, facts, or works created by the U.S. Government. • First sale: the act of selling, lending, or transferring a purchased copy of a work to another individual. • Fair use: allows copying a work for specific reasons.

18. Is Copyright Ethical? • The government takes the main ideas of Georg Hegel and a few ideas from John Locke as the basis for copyright laws. • When we look at the Copyright Act of 1790 it is clear that this is what was aimed for. • The drift of copyright has drastically changed over the years

19. Copyright vs. Ethics • Moved from promoting education to promoting wallets • Copyright law and cases struggle to maintain the balance between creators and users • Copyright law also avoids making an ethical decision • Currently copyright law chooses to uphold the “right” of creators to profit from their works • Is this ethical?

20. The Ethics of Copyright • While ethical considerations may have been in the minds of the creators of the copyright laws, they never wrote these ideals down. • For example, plagiarism may be unethical, but it is not illegal if justified by fair use. • Illegality and unethically cannot be automatically equated

21. Philosophical Justification for Intellectual Property • Justin Hughes has two basic justifications for intellectual property rights. • Lockean justification, modeled after John Locke, is often called the labor theory of property. When a person put time and work into something they acquire the right(s) to that property. • Surprising to Hughes, Locke never applied this reasoning to intellectual property. • When it come to justifying claims to intellectual property rights, the labor theory is most widely used. The Philosophy of Intellectual Property (1988)

22. More Justification • Hegelian or personality theory of intellectual property is the other justification that Hughes discusses. • In more recent claims to intellectual property, the personality theory has been the basis for justification.

23. A More Balanced View • The fact that intellectual property is an ethical issue, it is in a class all of its own. • Basically its main focus is on the individual who created the intellectual work, and what he or she should get from it. • To get a better view of the issue at hand, we must first step outside that framework and use the traditional theory of natural law.

24. Natural Law According to Aristotle • Natural law asks the question, “What is the good?”. Aristotle believes that the good of something was inherent in his nature, it was the fulfillment of its nature. • The nature of all those creative products we call intellectual property is that they are all information in some sense.

25. Information and Intellectual Property • Information can be a variety of things. • Those who produce information want to have control over its use, and profit from it, therefore they find intellectual property a very attractive concept. • Intellectual property claims can only go so far and must be balanced against the common good. • Each type of intellectual property must be treated differently.

26. Five cases: • Case 1:Plagiarism. Increasing numbers come from the Internet and other sources. • Students often take all or part of an article or essay that they have located online and hand it in as their own work, with or without any modifications of their own. • The Internet vastly increases the possibilities and temptations to plagiarize. • Not only is there more material available, but it is much easier to find and access.

27. Five cases:(cont'd) • Case 2:Software Piracy. 1994- David Lamacchia, an MIT student, was indicted for setting up and running a bulletin board that allowed people on the Internet to exchange copies of software. • Investigators found software worth millions of dollars on the system. • The student was accused of wire fraud and interstate transportation of stolen property (conviction carries a prison sentence and fines of up to $250,000). • Software publishers estimate more than half of all copies of their products used in the US are unauthorized. It can be as high as 90% in some foreign countries.

28. Five cases:(cont'd) • Case 3:Repackaging Data and Databases. A company named Pro-CD published a CD-ROM containing a large compilation of telephone listings. A University of WI graduate student put all the data on his website and charged users to access it. • The company sued claiming it had invested $10 million in collecting the data, putting it into an easily accessible form, packaging and marketing it. • Pro-CD claimed the student was cutting into their sales and marketing profits himself with almost no effort. • The debate over databases carries well beyond this obvious example. It extends to sports scores, weather information, stock prices, travel schedules, and more.

29. Five cases:(cont'd) • Case 4:Reverse Engineering. Makers of software generally publish specifications about how they are supposed to work and how to interface with them. -- These are often incomplete, obscure and inaccurate. • Developers must study source code of the system their product must work with sometimes in order to make their product function properly with the existing system. • Source code is generally jealously guarded because of the time and money invested in developing it. • This causes developers to take object code an return it to the original source code (reverse engineering). This gives a better understanding of how the existing system works. • This practice has been challenged by a number of lawsuits, on the grounds that the reverse engineered software might be competition for the original.

30. Five cases:(cont'd) • Case 5:Copying in Transmission. The Internet uses "store and forward" architecture. A message in this architecture is sent from computer to computer to get to its destination. • For reliability, each computer keeps a copy of the message until it reaches its destination (so it can resend the message if the first attempt fails) • Sometimes, for backup or other purposes, the information is stored on the computer instead of erased after successful transmission. • If copyrighted material is stored, Is this a violation of copyright laws? The debate continues.