Intellectual Property & Legal Regulation in Cyberspace

CSCI102 - Systems

ITCS905 - Systems

MCS9102 - Systems

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What is Intellectual Property?

• “Property” originally referred only to land• Typically refers to objects an individual can own

– Usually thought of as a tangible• A relationship between individuals

in reference to things– An individual X

– An object Y

– X’s relation to other individuals (A,B,C…) in reference to Y• X can control Y relative to A,B,C …

• By this more sophisticated definition,– control of data relative to others can make that data “property”

• But such claims are less straightforward than with tangible objects

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Intellectual Objects

• Represent creative works & inventions• Are manifestations and expressions of an idea• Are non-exclusionary• Scarcity need not apply• No practical limit to the number of intellectual objects

that can be owned• Legal protection can only be given to the expression

of ideas, not to possession of them

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Why Protect Intellectual Objects?• Theory One: Labor (Locke)

property ownership in return for labor

– ~ a natural right

• Theory Two: Utilitarianism (Mill)property rights are social constructs designed to encourage creators and inventors to serve society.

– ~ an artificial right

• Theory Three: Personality (Hegel)creations are expressions of personality, and thus the creator has a right to how their personality is displayed and distributed

– ~ a moral right

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Software as Intellectual Property• Should software be protected by patents or by copyright?

Or both?• Originally software was ineligible for either!

– Algorithms, like mathematics, represent mental-steps and are not eligible for patent

• Software protection is a recent development, late 80’s+

• Intellectual property protection falls into 4 categories:– Copyright law

– Patents

– Trademarks

– Trade secrets

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1: Copyright Law

• Granted to an individual or organisation• To be granted, the work must be

– Original

– Nonfunctional

– Fixed in a tangible medium

• Under US law, copyright holders have exclusive rights to:

– Make copies of the work

– Produce derivative works

– Distribute copies

– Perform works in public

– Display works in public

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1: Copyright Law

• Fair-Use & First-Sale Doctrines

– Balance exclusive author control with broader social interests

• Fair-Use:

– Criticism, Comment, News, Reporting

– Teaching, Scholarship, Research (incl. ‘reverse eng’)

• First-Sale:

– Original owner loses rights after first sale

• May destroy a book or give it away

– It is not clear however, if you can give away software that is licensed for use but not, strictly speaking, owned by a user

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1: Copyright Law

• Software Piracy as Copyright Violation– With PC’s, in 80’s it was easy to copy software but unclear if

it was legal to do so

– Manufacturers claimed to have lost millions in revenue (esp. Bill Gates)

• Exaggerated claims?

• Unrealistic as poor countries were never realistic markets for overpriced products anyway?

– Nissenbaum (1995) argues that it may sometimes be moral to copy software, even if its illegal, eg: to do the least harm

– Others argue there is no real harm is done• Remember tho’ the slippery slope & virtuality fallacies

– Corporations more concerned with piracy as organised crime

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1: Copyright Law

• DeCSS and Fair-Use

– Decrypt CSS (content scrambling system) which protects DVD’s

– Designed to allow DVD playing on Linux

• Argument for: - fair use

• Argument against: illegal to construct a workaround through a process that decodes or decrypts a technology

• Counter argument that anticircumvention clause unconstitutional as deprive individuals of fair use

– BTW: the right of SONY to commercially release the VCR (opposed by Universal City Studios), and thus allow the recording of TV programs, was only allowed under Fair-Use by a 5-to-4 vote of the US Supreme Court!

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2: Patents

• Legal protection given to individuals who create an invention or process• Under US law, patents can be applied to inventions that satisfy:

– Usefulness

– Novelty

– Non-obviousness• Three kinds of patent

– Design patents

– Utility patents

– Plant patents• Patent holder has complete monopoly for twenty years

• Have patents gone too far? Huge increase in applications• Concern over what should be elegible:

– Eg: Amazon.com vs BarnesandNoble.com

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3: Trademarks

• Word, name, phrase or symbol that identifies a product or service

• Trademark owner can argue another too similar may be ‘diluting’ or ‘blurring’ their “mark”

• The “mark” is supposed to be distinctive, but recent decisions may have gone too far …

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4: Trade Secrets

• Consists of information used in the operation of a business or other enterprise that is sufficiently valuable and secret to afford actual or potential advantage.

– Formulas

– Blueprints

– Chemical compounds

– Manufacturing processes

• Trade secret law is difficult to enforce internationally

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An Alternative IP Framework

• Previously we saw: Labor, Utility, Personality• Stallman (author of the Emacs editor) argues that information

“wants to be free”

– Humans desire to share information with each other

– Sharing requires access

– IP protection structures prevent information from achieving its purpose

• Aristotle’s causes: nature, end, purpose

– Natural law suggests the ‘good’ of information is for it to be communicated

• Consider the social nature of information

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Information wants to be shared vs.Information wants to be free• A new idea with perhaps a better chance is:

“information wants to be shared” (Tavani 2002)

• Can share the benefits of information without depriving others of it.

– Perhaps the “cyber age” allows us to move from the level of the individual to the level of the community

• Consider inter-library loans – allowable with physical books, but potentially illegal with electronic-storage material

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Information wants to be shared vs.Information wants to be free

• Has IP protection become oppressive?

• The Open-Source community promoted the idea that information wants to be shared, without adopting the far stronger idea that information wants to be (absolutely) free

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Public Domain of Ideas

• Which information is part of “common ground”available for the whole community?

• “Intellectual commons”• John Perry Barlow (1994) predicted end of IP law in

cyberspace but opposite may have occurred• IP protection is eroding the public domain through

over-regulation driven by economic interests• Perhaps the success of the environmental movement

provides an analogy for cyberspace - to save the “intellectual commons”?

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Is the Internet a Medium or a Place?• Are “Internet” and “cyberspace” roughly equivalent

terms?• MEDIA:

– Publisher

– Broadcast

– Distributor

– Common carrier

• A many-to-many medium?• Or is it a kind of public space?

– Public space infers all sorts of moral arguments about freedom and accessability

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Two Categories of Internet Regulation• Broadcast Medium -> Comon Carrier model

– Centered on content

• Public Space -> Bookstore model

– Centered on standards

• Can the decentralised Internet be regulated at all?• Lessig (1999) argues the architecture (code) is the key to

regulation

– Cyberspace

• Regulating content

– Speech

• Regulating process

– commerce

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Lessig Modes of Regulation

• Four modalities of regulation

• Laws

– Explicit laws banning certain things

• Social norms

– What is socially acceptable

• Market pressures

– Regulation through pricing

• Architecture

– Physical or procedural constraints

• Lessig argues the architecture of the net is moving from freedom to control, that the code is the law

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Regulation by Code & Privatisation

• Information policy is becoming ‘privatised’ (Niva Elkin-Koren 2000)

– Achieved through the technological controls embedded in the software code

• Tech that precludes immoral & illegal behaviour

– If there was ‘unpiratable’ software (or, say, an unstealable car) that thus precluded human crime, what is the moral ramification of removing the ability of the human to choose to do right?

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Regulation by Code & Privatisation

• Closing down public debate on copyright

– If manufacturers can decide what copyright rules should be, and automate these into the code of the product, then at what stage does the consumer or society get to debate these decisions and policies?

– Embedded restrictions have all the “force of law, without the checks and balances provided by the legal system”(Spinello 2000)

• Privatising information policy

– Steady devolution of Internet control to commercial interests

– Lines blurring between common carriers and commercial content providers

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Internet Domain Names

• URL’s were assigned on a first-come-first-serve basis• Cybersquatting

– Persons, organisations who registered URL’s related to trademarks

• ICANN

– Internet Corporation for Assigned Names & Numbers

• Not broadly representative

• Not accountable

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HTML & Trademark Infringement

• Embedded metatags can influence the behaviour of search engines

• What if these unfairly misrepresented a trademark?• Or were used to embed defamatory remarks?

<meta name="description" content="An international research institution providing undergraduate and

postgraduate degrees, located near Sydney in the beautiful coastal region of the Illawarra.">

<meta name="Keywords" content="wollongong, university, Sydney, uni, college, campus, degree,

academic, student, undergraduate, postgraduate, lecture, tutorial, Illawarra, education, computer,

information, technology, australia, new south wales, NSW, arts, creative arts, commerce, education,

engineering, health and behavioural sciences, informatics, law, science, access, diploma, masters,

doctorate, PhD, bachelor, labs, opportunities, career, sydney, berry, dubai, management, Internet,

research, accommodation, UniCentre, Conferences, Innovation, scholarships, prizes, technology,

library"> <!-- #EndEditable -->

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Hyperlinking & Deep Linking

• Links to sites that bypass the front-pages (which set out context, and usage policy etc) and jump directly to a “deeper” page of the site

– May bypass advertisements which are funding the site!

– May bypass counters

– Can thus cause commercial harm

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Other issues

• SPAM

Is SPAM ethical?

• Free Speech vs. Censorship

– Controversial speech

– Software Filtering

– Defamation

• Moral Accountability & Legal Liability of ISP’s

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Main Reference:

– Herman T. Tavani. Ethics & Technology: ethical issues in an Age of Information and Communication Technology. Hoboken, NJ: John Wiley, 2004.