Computer Ethics and Social Issues (CSE5312)

3. Intellectual Property

• Intellectual property rights

• Fair use

• New restrictions on use

• Intellectual property protection for software

• Creative Commons
Introduction
 Information Technology Changing Intellectual
Property Landscape

• Value of intellectual properties is much greater than value

of media
– Creating first copy is costly
– Duplicates cost almost nothing
• Illegal copying is pervasive
– Internet allows copies to spread quickly and widely
• In light of advances in information technology, how
should we treat intellectual property?
Intellectual Property Rights
What Is Intellectual Property?

• Intellectual property: any unique product of the

human intellect that has commercial value
• It also includes intangible creations of the human
intellect
– Books, songs, movies
– Paintings, drawings
– Inventions, chemical formulas, computer programs
• Intellectual property ≠ physical manifestation
Property Rights
• Locke: The Second Treatise of Government
• People have a right…
– to property in their own person
– to their own labor
– to things which they remove from Nature through their
labor
• As long as…
– nobody claims more property than they can use
– after someone removes something from common state,
there is plenty left over
 Expanding the Argument to Intellectual
Property
• Writing a play akin to making a belt buckle
• Belt buckle
– Mine ore
– Smelt it down
– Cast it
• Writing a play
– “Mine” words from English language
– “Smelt” them into prose
– “Cast” them into a complete play
Analogy Is Imperfect

• If Ben Jonson and William Shakespeare

simultaneously write down Hamlet, who owns it?
• If Ben “steals” the play from Will, both have it
Benefits of Intellectual Property
Protection

• Some people are altruistic; some are not

• Allure of wealth can be an incentive for
speculative work
• Authors of U.S. Constitution recognized
benefits to limited intellectual property
protection
Limits to Intellectual Property Protection

• Giving creators rights to their inventions

stimulates creativity
• Society benefits most when inventions in
public domain
• Congress has struck compromise by giving
authors and inventors rights for a limited
time
Prices Fall When Works Become
Public Domain

Table from “Letter to The Honorable Senator Spencer Abraham,” by Randolph P. Luck from LUCK’S
MUSIC LIBRARY. Copyright © 1996 by Randolph P. Luck. Reprinted with permission.
Protecting Intellectual Property
Trade Secret

• Confidential piece of intellectual property that

gives company a competitive advantage
• Never expires
• Not appropriate for all intellectual properties
• Reverse engineering allowed
• May be compromised when employees leave
firm
Trademark, Service Mark

• Trademark: Identifies goods

• Service mark: Identifies services
• Company can establish a “brand name”
• Does not expire
• If brand name becomes common noun,
trademark may be lost
• Companies advertise to protect their trademarks
• Companies also protect trademarks by
contacting those who misuse them
Screenshot by Xerox. Copyright © 2012 by Xerox Corporation. All rights reserved. Reprinted with permission.
Patent

• A public document that provides detailed

description of invention
• Provides owner with exclusive right to the
invention
• Owner can prevent others from making,
using, or selling invention for 20 years
Copyright
• Provides owner of an original work five rights
– Reproduction
– Distribution
– Public display
– Public performance
– Production of derivative works
• Copyright-related industries represent 5% of
U.S. gross domestic product (> $500 billion/yr)
• Copyright protection has expanded greatly since
1790
By permission of John Deering and Creators Syndicate, Inc.
Key Court Cases and Legislation

• Gershwin Publishing Corporation v.

Columbia Artists Management, Inc.
• Basic Books v. Kinko’s Graphics
Corporation
• Davey Jones Locker
• No Electronic Theft Act
Copyright Creep
Copyright Creep

• Since 1790, protection for books extended from

28 years to 95 years or more
• Some suggested latest extension done to
prevent Disney characters from becoming public
domain
• Group of petitioners challenged the Copyright
Term Extension Act of 1998, arguing Congress
exceeded Constitutional power
• U.S. Supreme Court
– CTEA does not create perpetual copyrights
– CTEA is constitutional
Fair Use
Fair Use Concept

• Sometimes legal to reproduce a

copyrighted work without permission
• Courts consider four factors
– Purpose and character of use
– Nature of work
– Amount of work being copied
– Affect on market for work
Sony v. Universal City Studios

• Sony introduces Betamax VCR (1975)

• People start time shifting TV shows
• Movie studios sue Sony for copyright
infringements
• U.S. Supreme Court rules (5-4) that time
shifting is fair use
Time Shifting
Digital Recording Technology

• Copying from vinyl records to cassette tapes

introduced hiss and distortions
• Introduction of compact disc a boon for music
industry
– Cheaper to produce than vinyl records
– Higher quality
– Higher price  higher profits
• BUT it’s possible to make a perfect copy of a CD
Audio Home Recording Act of 1992

• Protects rights of consumers to make copies of

analog or digital recordings for personal,
noncommercial use
– Backup copy
– Give to family member
• Digital audio recorders must incorporate Serial
Copyright Management System (SCMS), so
consumers can’t make a copy of a copy
RIAA v. Diamond Multimedia Systems

• MP3 compression allows songs to be stored in

10% of the space, with little degradation
• Diamond introduces Rio MP3 player (1998)
• People start space shifting their music
• RIAA starts legal action against Diamond for
violation of the Audio Home Recording Act
• U.S. Court of Appeals, 9th Circuit, affirms that
space shifting is consistent with copyright law
Space Shifting
Kelly v. Arriba Soft Corporation

• Kelly: Photographer maintaining Web site

with copyrighted photos
• Arriba Soft: Creates search engine that
returned thumbnail images
• Kelly sues Arriba Soft for copyright
infringement
• U.S. Court of Appeals, 9th Circuit, affirms
that use of images is a fair use
Google Books

• Google announced plan to scan millions of books held by

several huge libraries, creating searchable database of
all words
• If public domain book, system returns PDF
• If under copyright, user can see a few sentences; system
provides links to libraries and online booksellers
• Authors Guild and publishers sued Google for copyright
infringement
• Out-of-court settlement under review by U.S. District
Court for Southern District of New York
Benefits of Proposed Settlement

• Google would pay $125 million to resolve legal claims of

authors and publishers and establish Book Rights
Registry
• Readers would have much easier access to out-of-print
books at U.S. public libraries and university libraries
• University libraries could purchase subscriptions giving
their students access to collections of some of world’s
greatest libraries
• Authors and publishers would receive payments earned
from online access of their books, plus share of
advertising revenues
Criticisms of Proposed Settlement

• Google should have gone to court

– Google had a good case that its use was a fair use,
based on precedent of Kelly v. Arriba Soft
– If Google had been found not guilty of copyright
infringement, it could have given public access to
books at lower rates
• Agreement gives Google a virtual monopoly over
orphaned works
• Potential chilling effect of Google tracking the
pages that people are viewing
Court Rejects Proposed Settlement

• March 2011: U.S. District Court for

Southern District of New York rejected
proposed settlement
• Judge ruled agreement would have:
– Given Google significant advantage over competitors
– Rewarded Google for “wholesale copying of
copyrighted words without permission”
– Given Google liberal rights over orphaned works
New Restrictions on Use
Counterfeit CDs Means Lost Profits

© Reuters/CORBIS
Digital Millennium Copyright Act

• First big revision of copyright law since 1976

• Brought U.S. into compliance with Europe
• Extended length of copyright
• Extended copyright protection to music
broadcast over Internet
• Made it illegal for anyone to
– Circumvent encryption schemes placed on digital
media
– Circumvent copy controls, even for fair use purposes
Digital Rights Management

• Actions owners of intellectual property take

to protect their rights
• Approaches
– Encrypt digital content
– Digital marking so devices can recognize
content as copy-protected
Secure Digital Music Initiative

• Goals
– Create copy-protected CDs
– Secure digital music downloads
• Consortium of 200 companies developed “digital
watermarking” scheme
• Failed
– Internet copying became huge before SDMI ready
– Some SDMI sponsors were electronics companies
– Digital watermarking encryption cracked
Sony BMG Music Entertainment Rootkit

• Millions of audio CDs shipped with Extended

Copy Protection, a DRM system
• Prevented users from
– Ripping audio tracks into MP3 format
– Making more than 3 backup copies
• Relied upon Windows “rootkit” that hid files and
processes; usually only hackers use rootkits
• Huge public outcry once secret uncovered
• Sony BMG stopped production and
compensated consumers
Encrypting DVDs
• Contents of DVDs encrypted using
Content Scramble System (CSS)
• Need decryption keys to view a DVD
• Jon Johansen wrote a decryption program
for Linux
• 2600 Magazine published the code
• Motion picture studios sued 2600
Magazine and won
• Johansen tried in Norway and found not
guilty
Foiling HD-DVD Encryption

• Hardware, software, and entertainment

companies created Advanced Access Content
System to encrypt HD-DVDs
• Encryption key posted on Digg.com
• AACS leaned on Digg.com to censor postings
containing key
• Digg users fought back
• AACS “expired” the key and issued a new one
• A month later, a Digg user posted the new key
Criticisms of Digital Rights Management

• Any technological “fix” is bound to fail

• DRM undermines fair use
• DRM could reduce competition
• Some schemes make anonymous access
impossible
Online Music Stores Employed
Digital Rights Management
• When iTunes Music Store opened, all music was
protected with a DRM scheme called FairPlay
• FairPlay blocked users from freely exchanging purchased
music
– Songs couldn’t be played on more than 5 different computers
– Songs couldn’t be copied onto CDs more than 7 times
• Songs purchased from iTunes Store wouldn’t play on
non-Apple devices
• DRM-protected music purchased from other online
retailers couldn’t be played on iPod
Online Music Stores Drop Digital
Rights Management
• Consumers complained about restrictions
associated with DRM
• European governments put pressure on Apple to
license FairPlay or stop using DRM
• Amazon reached an agreement with all four
major music labels to sell DRM-free music
• Apple followed suit in 2009
Peer-to-Peer Networks
Peer-to-Peer Networks Facilitate
Data Exchange
• Peer-to-peer network
– Transient network
– Connects computers running same networking
program
– Computers can access files stored on each other’s
hard drives
• How P2P networks facilitate data exchange
– Give each user access to data stored in many other
computers
– Support simultaneous file transfers among arbitrary
pairs of computers
– Allow users to identify systems with faster file
exchange speeds
A Peer-to-Peer Network
Napster

• Peer-to-peer music exchange network

• Began operation in 1999
• Sued by RIAA for copyright violations
• Courts ruled in favor of RIAA
• Went off-line in July 2001
• Re-emerged in 2003 as a subscription
music service
FastTrack

• Second-generation peer-to-peer network

technology
• Used by KaZaA and Grokster
• Distributes index among large number of
“supernodes”
• Cannot be shut down as easily as Napster
Comparing Napster and FastTrack
BitTorrent
• Broadband connections: download much
faster than upload
• BitTorrent speeds downloading
– Files broken into pieces
– Different pieces downloaded from different
computers
• Used for downloading large files
– Computer programs
– Television shows
– Movies
Concept Behind BitTorrent
RIAA Lawsuits

• April 2003: RIAA warned file swappers they

could face legal penalties
• RIAA subpoenaed Verizon for identities of
people suspected of running supernodes
• Judge ruled in favor of Verizon
• September 2003: RIAA sued 261 individuals
• December 2003: U.S. Court of Appeals ruled
Verizon did not have to give customer names to
RIAA
Huge Jury Judgments Overturned

• Jammie Thomas-Rassert
– Federal jury ordered her to pay $1.92 million
– Damages reduced to $54,000
• Joel Tenenbaum
– Jury ordered him to pay $675,000
– Judge reduced award to $67,500
• Does RIAA have to prove someone actually copied the
songs that people made available on Kazaa?
– New York decision: No
– Massachusetts, Arizona decisions: Yes
MGM v. Grokster
• Entertainment industry interests sued Grokster
and StreamCast for the copyright infringements
of their users
• Lower courts
– Granted Grokster and StreamCast a summary
judgement
– Cited Sony v. Universal City Studios as a precedent
• U.S. Supreme Court
– Reversed the lower court ruling in June 2005
– Proper precedent Gershwin Publishing Corporation v.
Columbia Artists Management
Legal Action Against The Pirate Bay

• The Pirate Bay located in Stockholm, Sweden

• One of world’s biggest BitTorrent file-sharing sites
• People download songs, movies, TV shows, etc.
• After 2006 raid by police, popularity increased
• In 2008 the International Federation of the Phonographic
Industry sued four individuals connected with site
• Defendants said The Pirate Bay just a search engine
• Found guilty; sentence to prison and fined $6.5 million
• Meanwhile, The Pirate Bay still operational
Legal Music Services on the Internet

• Subscription services for legal downloading

• Some based on monthly fee; some free
• Consumers pay for each download
• Apple’s iTunes Music Store leading service,
surpassing WalMart as top music retailer in
United States
• Still, illegal downloading far more popular than
legal music services
Protections for Software
Software Copyrights

• Copyright protection began 1964

• What gets copyrighted?
– Expression of idea, not idea itself
– Object program, not source program
• Companies treat source code as a trade
secret
Violations of Software Copyrights

• Copying a program to give or sell to

someone else
• Preloading a program onto the hard disk of
a computer being sold
• Distributing a program over the Internet
Important Court Cases

• Apple Computer v. Franklin Computer

– Established that object programs are
copyrightable
• Sega v. Accolate
– Established that disassembling object code to
determine technical specifications is fair use
Software Patents (1/3)

• Until 1981, Patent Office refused to

grant software patents
– Saw programs as mathematical algorithms,
not processes or machines
• U.S. Supreme Court decision led to first
software patent in 1981
• Further court rulings led to patents
being granted for wider range of
software
Software Patents (2/3)

• Thousands of software patents now exist

– Microsoft files ~3,000 applications annually
– Licensing patents a source of revenue
• Secondary market for software patents
– Patent trolls: Companies that specialize in buying
patents and enforcing patent rights
– Companies would rather settle out of court than spend
time and money going to trial
– RIM didn’t settle quickly; ended up paying $612 million
Software Patents (3/3)
• Critics say too many patents have been issued
– Patent Office doesn’t know about prior art, so it issues
bad software patents
– Obvious inventions get patents
• Companies with new products fear getting sued
for patent infringement
– Build stockpiles of patents as defense mechanism
– Software patents used as legal weapons
• Bezos: software patents should expire in 3-5
years
Safe Software Development

• Reverse engineering okay

• Companies must protect against
unconscious copying
• Solution: “clean room” software
development strategy
– Team 1 analyzes competitor’s program and
writes specification
– Team 2 uses specification to develop software
Open-Source Software
Consequences of Proprietary Software

• Increasingly harsh measures being taken

to enforce copyrights
• Copyrights are not serving their purpose of
promoting progress
• It is wrong to allow someone to “own” a
piece of intellectual property
Open-Source Definition

• No restrictions preventing others from selling or

giving away software
• Source code included in distribution
• No restrictions preventing others from modifying
source code
• No restrictions regarding how people can use
software
• Same rights apply to everyone receiving
redistributions of the software (copyleft)
Beneficial Consequences of Open-
Source Software
• Gives everyone opportunity to improve program
• New versions of programs appear more
frequently
• Eliminates tension between obeying law and
helping others
• Programs belong to entire community
• Shifts focus from manufacturing to service
Examples of Open-Source Software

• BIND
• Apache
• Sendmail
• Android operating system for smartphones
• Firefox
• OpenOffice.org
• Perl, Python, Ruby, TCL/TK, PHP, Zope
• GNU compilers for C, C++, Objective-C, Fortran, Java,
and Ada
Screenshot from OpenOffice.org, a registered trademark of Apache Software Foundation.
Copyright © 2012 by Apache Software Foundation. Reprinted with permission.
GNU Project and Linux

• GNU Project
– Begun by Richard Stallman in 1984
– Goal: Develop open-source, Unix-like operating
system
– Most components developed in late 1980s
• Linux
– Linus Torvalds wrote Unix-like kernel in 1991
– Combined with GNU components to make an O.S.
– Commonly called Linux
Impact of Open-Source Software

• Linux putting pressure on companies

selling proprietary versions of Unix
• Linux putting pressure on Microsoft and
Apple desktops
Crititique of the Open-Source
Software Movement
• Without critical mass of developers, quality can
be poor
• Without an “owner,” incompatible versions may
arise
• Relatively weak graphical user interface
• Poor mechanism for stimulating innovation (no
companies will spend billions on new programs)
 Legitimacy of Intellectual
Property Protection for Software
Do We Have the Right System in Place?

• Software licenses typically prevent you

from making copies of software to sell or
give away
• Software licenses are legal agreements
• Not discussing morality of breaking the law
• Discussing whether society should give
intellectual property protection to software
Rights-based Analysis

• “Just deserts” argument

– Programming is hard work that only a few can do
– Programmers should be rewarded for their labor
– They ought to be able to own their programs
• Criticism of “just deserts” argument
– Why does labor imply ownership?
– Can imagine a just society in which all labor went
to common good
– Intellectual property not like physical property
A Consequentialist Argument Why
Software Copying Is Bad

Beth Anderson
Utilitarian Analysis
• Argument against copying
– Copying software reduces software purchases…
– Leading to less income for software makers…
– Leading to lower production of new software…
– Leading to fewer benefits to society
• Each of these claims can be debated
– Not all who get free copies can afford to buy software
– Open-source movement demonstrates many people
are willing to donate their software-writing skills
– Hardware industry wants to stimulate software industry
– Difficult to quantify how much society would be harmed
if certain software packages not released
Conclusion

• Natural rights argument weak

• Utilitarian argument not strong, either
• Nevertheless, society has granted
copyright protection to owners of computer
programs
• Breaking the law is wrong unless there is a
strong overriding moral obligation or
consequence
Creative Commons
Streamlining Creative Re-use
• Under current copyright law, eligible works
are copyrighted the moment they are created
• No copyright notice does not mean it’s okay
to copy
• Must contact people before using work
• That slows down creative re-use
• Free Creative Commons license indicates
– Which kinds of copying are okay
– Which rights are being retained
• Flickr and Magnatune two well-known sites
using Creative Commons licenses
Screenshot from Creative Commons. Copyright © 2011 by Creative Commons. Reprinted with permission.