http:// an ethics analysis of the digital millennium copyright act thomas s. e. hilton & ingrid...

http://www.uwec.edu/hiltonts

1

AN ETHICS ANALYSIS OFTHE DIGITAL MILLENNIUM

COPYRIGHT ACT

Thomas S. E. Hilton & Ingrid C. UlstadUniversity of Wisconsin—Eau Claire

Presented to the Annual Conference ofThe International Association for Computer Information Systems

Cancun, MexicoOctober 7-9, 2004


2

Topics Introduction DMCA IS Ethics Comparison Conclusions


3

Introduction To Protect Electronic Intellectual Property Signed in 1998, Active in 2000 Five “Titles” Charges of Favoring Owners over Users Is the DMCA an Ethical Law?


4

Title I Implements WIPO Treaties Prohibits Circumvention of Access Protection Defines Exceptions to Access Circumvention

Prohibition Prohibits Falsification of Copyright

Management Information Mandates Copyright Office Studies of Effects


5

Title II Limits ISP Liability for User Actions Storing Material at User’s Request Referring Users to Materials at Other Online

Locations Acting as a Conduit for Transferring Material

between Users


6

Title III Exempts repair technicians from liability for

illegal acts executed automatically during maintenance or repair because of preexisting configuration


7

Title IV Webcasters must pay licensing fees to

copyright owners (recording companies) Nonprofit Libraries, Archives, and

Educational Institutions Can Copy within Limits

Further Study of Regulations Necessary to Promote Distance Education


8

Title V Protects original boat hull designs


9

IS Ethics Principles Many Statements of IS Ethics

Association for Computing Machinery (ACM) Association for Information Technology

Professionals (AITP) Institute of Electrical & Electronic Engineers

(IEEE) ACM Chosen as Representative 22 Guidelines in Three sections


10

ACM Section 1.0General Moral Imperatives1.1 Contribute to society and human well-being.1.2 Avoid harm to others.1.3 Be honest and trustworthy.1.4 Be fair and take action not to discriminate.1.5 Honor property rights including copyrights and

patent rights.1.6 Give proper credit for intellectual property.1.7 Respect the privacy of others.1.8 Honor confidentiality.


11

ACM Section 2.0:Specific Professional Responsibilities2.1 Strive for quality, effectiveness and dignity in process and

product.2.2 Acquire and maintain professional competence.2.3 Know and respect existing laws pertaining to professional work.2.4 Accept and provide appropriate professional review.2.5 Evaluate computer systems and their impacts, comprehensively

and thoroughly.2.6 Honor contracts, agreements, and assigned responsibilities.2.7 Improve public understanding of computing and its

consequences.2.8 Access computing and communication resources only when

authorized to do so.


12

ACM Section 3.0Leadership Imperatives3.1 Articulate social responsibilities of organization members

and encourage full acceptance.3.2 Develop information systems that enhance the quality of

working life.3.3 Acknowledge and support proper and authorized uses of

computing resources.3.4 Articulate stakeholder requirements during design; see that

finished systems meet them.3.5 Articulate and support policies to protect users and others

affected by computing systems.3.6 Help organization members learn the principles and

limitations of computers.


13

Grouping Asserted Conflicts Access/Copying Privacy Quality Due Process


14

Asserted Conflict: Access/Copying1.5 Unfairly Abridges Consumer Fair Use Rights2.2 Interferes With Fair Use of Products in Education

and Training2.7 Makes Computing Products and Services Less

Available, Not More So2.8 Criminalizes Ethically Legitimate Use3.3 Limits Ethically Proper and Authorized Use of

Resources3.6 Limits Access to, and Hence Learning of,

Computer Systems


15

Asserted Conflict: Privacy1.7 Lets Copyright Owners Force ISPs to

Divulge Private Information about Consumers

1.8 Authorizes Copyright Holders to Invade the Privacy of Consumers


16

Asserted Conflict: Quality1.1 Stifles Innovation and Perpetuates Obsolete

Business Models2.1 Preserves the Status Quo at the Expense of Quality

Improvement2.1 Impedes Effective Use of Internet and Other

Computing Resources2.4 Prohibits Pre-Purchase Evaluation of Copyrighted

Works2.5 Reduces the Opportunity to Evaluate a Product

before Buying it


17

Asserted Conflict: Due Process1.2 Penalizes Legitimate Consumers for the Actions of

Criminals1.3 Authorizes Copyright Owners to Covertly Damage

Consumer Computers1.4 Denies Legitimate Consumers Due Process upon

Accusation2.1 Subjugates Consumers to a Copyright-Holding

Elite3.5 Unfairly Imposes Penalties for Illegitimate Use on

Legitimate Users


18

Access/Copying Allegation Probably the most widely publicized and disputed provision Said to make illegal the copying of a copy-protected work no

matter whether the copy itself is legal or not

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title. … No person shall…traffic in any technology…that…is primarily…for…circumventing a technological measure that effectively controls access to a work protected under this title.”


19

Access/Copying Analysis Critical distinction between access and copying Eight exceptions to the prohibition: law enforcement and

intelligence gathering; pre-purchase evaluation by nonprofit libraries, archives, and educational institutions; reverse engineering for legal interoperability; encryption research; protection of minors; protection of personal privacy; security testing; Copyright Office review every two years to exempt groups who “are likely to be adversely affected by…the prohibition in making non-infringing uses”

Implementation questions notwithstanding, we cannot fault the law itself

We find the DMCA at least minimally in harmony with IS ethics norms as regards Access/Copying


20

Privacy Allegation Said to promote unethical disclosure of private

information about Internet users. Asserted to be a major tool of “the onward march to

undermine consumer privacy in the name of intellectual property.”

“A copyright owner…may request the clerk of any United States district court to issue a subpoena to [an Internet] service provider for identification of an alleged infringer.”


21

Privacy Analysis Similar subpoena power is levied on radio and

telephone service providers in the Communications Act of 1934

Subpoena granted only after showing probable cause

This point may be confused with a much more dubious DMCA provision

We find the DMCA largely in harmony with IS ethics norms as regards Privacy


22

Quality Allegation Said to contribute to degradation in quality of software and

business Said to be a Luddite reaction against efficient distribution

(i.e., peer-to-peer networks, a.k.a. P2P)

“No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily…for… circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent… access to a work protected under this title; or (C) is marketed…for use in circumventing…a work protected under this title.”


23

Quality Analysis Many copyright owners have not implemented

access/copying distinction Criminalizing peer-to-peer trading of copyrighted

files would eliminate a potentially tremendous boost in distribution productivity

P2P Criminalization Unneeded per the music royalty model of radio and television

Internet infrastructure is ideal for this We find the DMCA significantly at odds with IS

ethics norms as regards Quality


24

Due Process Allegation 1 of 2 Potential denial of due process to computer

users Said to allow copyright owners to “logic-

bomb” computers that illegally download

No relevant DMCA text found


25

Due Process Analysis 1 of 2 Evidently an Internet legend originating from a

question by Sen. Orrin Hatch in a Hearing

We find the DMCA completely unrelated to Due Process Allegation 1


26

Due Process Allegation 2 of 2 Potential denial of due process to computer users Said to allow virtually anyone to force removal of information from

the Internet without judicial review

“[An Internet] service provider shall not be liable…for infringement of copyright by…a user…if the service provider …upon notification of claimed infringement…responds expeditiously to remove, or disable access to, the material that is claimed to be infringing. … To be effective under this subsection, a notification of claimed infringement must… include…a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”


27

Due Process Analysis 2 of 2 The above text threatens ISPs with liability for the

behavior of their users unless the ISP blocks access to user-posted information “expeditiously” after receiving a complaint from virtually anyone.

This complaint need contain neither subpoena, other court order, nor any particular justification.

We find the DMCA egregiously at odds with IS ethics norms as regards Due Process Allegation 2


28

Conclusion Does the DMCA Conform to IS Ethics Norms?

Access/Copying yes Privacy Yes Quality No Due Process NO


29

Thanks for Your Attention Questions? Discussion?

http:// an ethics analysis of the digital millennium copyright act thomas s. e. hilton & ingrid...

Documents