IT and Ethics Lecture 8 Intellectual Property Rights

IT and Ethics Lecture 8 Intellectual Property Rights Illegal copying of SW/DDM 2/28/2021 Kai Kimppa, IT Department, Information Systems 1

On legal aspects, Henrik Elfving has an IPR course Traditional and emerging protection • Copyright – Literary works, art, music – To protect author? Or the company? – SW? • Patent – Means of production or products – To protect the inventor? Or the company? – SW? 2/28/2021 Kai Kimppa, IT Department, Information Systems 2

Alphabet soup • DRMs = Digital Rights Management – Can close access to previously public domain information – Can close fair use aspects of material – Can distribute Trojans (see Sony-BMG) • DMCA(s) = Digital Millennium Copyright Act – Can close fair use aspects of material • CPEA(s) = Copyright Protection Extension Act – Harmonises copyright law in USA to reflect the one in EU – Similar directive in EU some years back • European Copyright Directive of 2001 (“Euro-DMCA”) 2/28/2021 Kai Kimppa, IT Department, Information Systems 3

IPR Traditions • Western (rough division) – Anglo-American • Liberalist: Right to property • Utilitarian: New inventions benefit society, thus incentives must be provided – Continental Europe • Kantian: Respect the author/inventor 2/28/2021 Kai Kimppa, IT Department, Information Systems 4

Copyright • Copyright originally for works of art and published material • To protect the form of the idea, not the idea • “Fitted” to SW • “To further the distribution of ideas and fine arts into the society” • Protection time problematic, life time of the author (? ) + 70 years 2/28/2021 Kai Kimppa, IT Department, Information Systems 5

Patent • Protects products or ways to create products • Now also for SW, especially embedded SW but in larger amounts to any – ”anything man made under the sun” patentable • Strong protection • 20 years • Aim to bring new inventions forth and to be further developed in the society(/ies) 2/28/2021 Kai Kimppa, IT Department, Information Systems 6

Tavani (2004) Balancing Intellectual Property Rights and the Intellectual Commons: A Lockean Analysis Intellectual Commons • Traditionally: works that have fallen outside copyright or have not been copyrighted • Now: plenty of information and SW available in commons of one sort or another • Propertisation of the intellectual endangers public access and fair use 2/28/2021 Kai Kimppa, IT Department, Information Systems 7

Problems • Long protection times in comparison to SW expected life cycle • Do they really promote use of or (further) development of SW? • Need to invent the wheel again and again 2/28/2021 Kai Kimppa, IT Department, Information Systems 8

Drahos (1996) A Philosophy of Intellectual Property Lessig (2001) The Future of Ideas: … Something else? • Different protection for chips, why not SW? (after all, chips do run on physical ‘SW’, cf. logical ports) • Perhaps a new form of protection needed for SW? – SW-right? – DDM-right? • Other ideas: – 6 -8 years for patent (Drahos) – 5 years, once (or twice) renewable for copyright (Lessig) 2/28/2021 Kai Kimppa, IT Department, Information Systems 9

Other traditions • Eastern Alford (1995) To Steal a Book Is an Elegant Offence: Intellectual Property Law in Chinese Civilization Drahos (1996) A Philosophy of Intellectual Property – China (greater) • No IPR’s • If an artistic or scientific production is not copied and plagiarized it is considered no good • 2500 years of no IPR’s – Japan • Originally same as other far east • After WW II ‘little Japanese men with camera’s’ in all American and other western factories 2/28/2021 Kai Kimppa, IT Department, Information Systems 10

No traditions? • Large areas of the world has had no IPR’s – Aboriginals – Africans – South America • Traditional story telling – The rights of the tribe, rather than the rights of the person 2/28/2021 Kai Kimppa, IT Department, Information Systems 11

Stallman, www. fsf. org Expectations of IT • IT will lessen the need for IPR’s due to faster and wider dissemination – Has proven false; not so much that it wouldn’t per se be true, but IPR holders haven’t acknowledged this • IT will open new markets – very slowly – Music in the Internet? • Old companies not willing to do this – SW in the internet? • Free/Open SW, Shareware, Freeware, but proprietary SW? – CD’s and DVD’s not IT issue—or are they? 2/28/2021 Kai Kimppa, IT Department, Information Systems 12

F/OSS • Stallman: Free Source Software Raymond (2001) The Cathedral & The Bazaar: … http: //www. catb. org/~esr/writings/cathedral-bazaar/ Himanen (2001) The Hacker Ethic and the Spirit of the Information Age – Freedom to do as one pleases a strong underlying philosophy (liberal philosophy) – GNU GPL and Copyleft • Raymond: Open Source Software – Nothing per se against proprietary SW – Open SW just more pragmatic for some things – Many eyeballs tame complexity • Torvalds/Himanen: Fun and Games – Maslow’s “hierarchy of values”: Survival -> Social life -> Entertainment – Protestant work ethic vs. Hacker work ethic – Time is money vs. It’s my life – Work vs. Fun 2/28/2021 Kai Kimppa, IT Department, Information Systems 13

Categories of Free and Non-Free Software www. fsf. org 2/28/2021 Kai Kimppa, IT Department, Information Systems 14

Liberalist view • Traditionally thought to support strong property rights – this true • But derived that supports strong intellectual property rights – this may be false • Labour theory of property • Why? Because worked upon can be stolen. • Immaterial cannot be stolen • What rights can be transferred to others? Kimppa (2005) Intellectual Property Rights in Software—Justifiable from a Liberalist Position? Kimppa (2004) Redistribution of Power from Government to Intellectual Property Rights Owners and Organizations Looking After Their Interests: Justifiable from a Liberalist Position? 2/28/2021 Kai Kimppa, IT Department, Information Systems 15

Consequentialist view • Traditionally thought to support IPRs well • Does it? Most points: – Theoretical – Ad hoc rationalizations – Badly grounded • Burden of proof? Kimppa (2004) Consequentialist Considerations of Intellectual Property Rights in Software and other Digitally Distributable Media 2/28/2021 Kai Kimppa, IT Department, Information Systems 16

Kimppa (2005) Kantian duty ethics not supporting current Intellectual Property Rights laws? Kantian view • All treated equally when given IPRs (categorical imperative seems to be satisfied) • Author/creator of immaterial treated as an end, not merely as means (categorical imperative seems to be satisfied) • But, moral decisions from duty, not from force. • Are all treated equally? • What about treating the users? Means? Ends? 2/28/2021 Kai Kimppa, IT Department, Information Systems 17

Relativist view • Tolerance • Should we appreciate the other ways to handle IPRs or force all to the same model? – – China Japan Australia Brazil, etc. • And what about our own history? – Genoa – Britain – USA 2/28/2021 Kimppa (2006) Socially Responsible International Intellectual Property Rights in Software and Other Digitally Distributable Material Kai Kimppa, IT Department, Information Systems 18

Jessica Litman (2003) Ethical disobedience Illegal copying of SW (Piracy) • Traditionally from disk to disk (or CD to CD), FTP etc. • Now through Ka. Zaa, e. Donkey/Mule etc. • “Piracy” a loaded word – Pirates kill and maim people – P 2 P copying hardly supports drug trade, pornography etc. • “Make believe laws” -> people believe them -> real laws can be put into place (copyright law changes in Finland shortly, USA already changed) • SW – First contact often games – Then other SW 2/28/2021 Kai Kimppa, IT Department, Information Systems 19

Illegal copying of other Digitally Distributable Media (DDM) • Music – Copying of CD’s; NOT piracy in Finland (or USA) when done to a friend IF no DRMs are circumvented – Copying of music from the ‘Net; NOW piracy in EU (and has been in USA for a while already) even if copied to self. . IT & EthicsIPRsfpsf. avi – RIAA law suits best known, on average from users US$ 3000 -5000 and all settled outside court, now first going to court finally, supported by one of the artists and her company, for whom RIAA is claiming to collect the money for. – Wide scale distribution in either form of course illegal http: //www. piraattitehdas. fi/ http: //hietanen. typepad. com/copyfraud/ http: //www. piraattitehdas. be/ 2/28/2021 Kai Kimppa, IT Department, Information Systems 20

Illegal copying of other DDM • Pictures (picture rights/copyright) – Widely done – WWW pages – Porn pictures • Movies – Lately in greater amounts, P 2 P – Div. X and Xvi. D at least partly reason for this – Now with T 2 bandwith also HDTV quality… 2/28/2021 Kai Kimppa, IT Department, Information Systems 21

Britz and Ponelis (2006) When is it Good to Steal? A Moral Reflection on Current Trends in Intellectual Property Academic information? • A study in Nigeria, results in Lancet – Access? – Not freely available in the Web • Same applies to all scientific information • What is the purpose of scientific information? – Enhance our knowledge by • Creating new knowledge and • Distributing them – If the results are not available (due to copyright) to those in need, purpose defeated 2/28/2021 Kai Kimppa, IT Department, Information Systems 22

Traditional media in new environment • Newspapers, journals and books in the net • Pictures problematic, usually different IPR deals than with texts • Also, articles depending on the deals made with the writer, now generally so that can be published 2/28/2021 Kai Kimppa, IT Department, Information Systems 23

Against and for copying DDM • BSA, RIAA and MPAA done a lot of studies on the effect of copying on selling—bias (expectations)? • Business schools done a lot of studying of copying on selling —bias (short term profit instead of good)? -> both of these groups found mainly negative results • Some studies done by researchers in business schools point to direction that there is no relation between copying and sales, however (P 2 P vs. sales) • Also, clear examples of when copying benefits sales – Books or music for free -> interest rises in customers – Movies copied from the net -> goes to watch a movie to which wouldn’t otherwise go • Also, in places like Finland, a lot of series and movies are not available through traditional means at all 2/28/2021 Kai Kimppa, IT Department, Information Systems 24

Faults? • Liberalist tradition to protect property – whether the immaterial is property is questionable. • Utilitarian tradition to promote the good of the society and the people in it – whether IPR’s in SW and DDM promote the good of the society questionable. • Kantian view to uphold the integrity of the author/inventor – whether it might be the case that others have been forgotten. • Tolerance of other cultures forgotten. Whether this is something that ought to be remembered, who knows? 2/28/2021 Kai Kimppa, IT Department, Information Systems 25

Demonstration case • Consider the positive effects of – Copyright – Patent to SW • Which aspects of Software creation do they promote? – How well? • Which aspects of Software cretion do they not promote? – Are there alternatives? 2/28/2021 Kai Kimppa, IT Department, Information Systems 26