Software Security Comp Sci 725 Handout 10 Software

Software Security Comp. Sci 725 Handout 10: Software Law and Ethics Clark Thomborson Jim Goodman University of Auckland 2/12/2022 SW law 1

“The Age of Software Patents” Kenneth Nichols IEEE Computer, April 1999 “As a computer professional, it is highly unlikely that you have ever read a patent… however… patents will play a pivotal role in future software products and research. ” 2/12/2022 SW law 2

Outline • Tutorials – Essentials of US patent law, for software – US trade secrets and copyright, for software • Editorials – Why software is different from all other inventions – Why software patents don’t work – Software patents may be harmful Public good of encouraging invention, versus the harm of restricting use “… but software patents are neither inherently good nor bad. ” 2/12/2022 SW law 3

What is a Patent? “A patent is a legal monopoly granted for the use, manufacture and sale of an invention. ” It is valid for twenty years. Legal monopoly = your right to be “in control” of your invention, will be defended by the US government. This is a form of “intellectual property. ” 2/12/2022 SW law 4

What is an Invention? • An invention is a device or process that is novel, useful, and non-obvious. • What is not an invention? – Anything that is neither a device nor a process. (Is software a device? A process? ) – Anything that has been “disclosed” previously, including all patent applications filed earlier than yours. – Anything that is not in “the useful arts” including literary, decorative, or entertaining innovations: “A technique for constructing novels would not qualify for a patent. ” (!) – Anything that is obvious to one “skilled in the art. ” 2/12/2022 SW law 5

The Process of Patenting 1. You invent something. 2. You apply for a US patent prior to disclosure, or for a NZ patent within 12 months of first disclosure. 3. A patent examiner reviews your application, to decide if your description is sufficiently “enabling” to be a disclosure of an invention that is both novel and useful. 4. You answer any objections or questions the examiner may raise, possibly revising your “claims” that will define the coverage of your patent. 5. Your patent is “issued” (or it may be denied ; -). 2/12/2022 SW law 6

What Can You Do with a Patent? • You may “assign” your patent to someone who will pay the (substantial) costs of filing and defending it. • You may sell licenses to your patent, allowing others to manufacture something containing your invention. • If you discover someone “infringing” your patent, you may offer to sell them a license, and you may refuse to let them use your patent. FWhy is your right of refusal in the public interest? 2/12/2022 SW law 7

Trade Secrets for Software 1. You write some clever software. 2. You don’t reveal your “secret” cleverness, except to people who have signed a “nondisclosure agreement” (NDA). 3. You can prosecute anyone who reveals your secret, if they have signed an NDA. 4. You have limited protection over people who “reverse engineer” your software to discover your clever idea. 2/12/2022 SW law 8

Software Copyright 1. 2. 3. 4. You write some software. You obtain copyright protection (easy!). You can prosecute (almost) anyone who copies your software. Everyone has the right to make a “derivative work” by changing some visual or auditory elements. 5. The “look and feel” of the GUI for the Microsoft and Macintosh OS are protected by US copyright law. 6. Text-only interfaces (DOS, Unix) are not protected. 7. Crown Copyright differs from US Copyright, but there are international agreements. 2/12/2022 SW law 9

Conclusion • All software developers should know at least a little bit about patents, copyrights and trade secrets. This article is an excellent introduction. 2/12/2022 SW law 10

For More Information… • A more careful (but still rudimentary) treatment of the legal issues in patenting can be found in “Patent Law Basics, ” Office of Technology Transfer, University of Arizona, 14 December 1998. See http: //www. ott. arizona. edu/patbasics. htm, available March 2003. • My published international patent applications, and all other US patents and WIPO applications, can be viewed at http: //www. delphion. com/. 2/12/2022 SW law 11

“Encoding the Law into Digital Libraries” Pamela Samuelson Comm. ACM, April 1998 “One of the burning questions in the field of cyberlaw is to what extent law or public policy should intervene to tell technologists what they can and can’t code. ” 2/12/2022 SW law 12

Outline • How copyright constrains digital libraries – A copyright owner may restrict copying, within limits. – Libraries have a right to permit copying, within limits. – Technologists tend to oversimplify copyright limits, which are complicated for good reason. • Privacy considerations (records of “who borrowed what”) • Lessig’s observation: “[computer] code as [legal] code”. – Both types of “code” regulate behaviour, but computer codes aren’t controlled by governments. – Can cracking (subversion of software codes) be justified as civil disobedience? – Laws have been passed (in the US and elsewhere) to prohibit the circumvention of anti-copy technologies. Do you care? – (Lessig identifies two other regulators: “markets” and “norms”. See http: //cyberlaw. stanford. edu/lessig/content/articles/works/finalhls. pdf, available March 2003. ) 2/12/2022 SW law 13

Restrictions on Copying • If a digital library has a license or contract saying “no more than three users can access a document at one time” then – you, as the software developer for the library, should enforce this restriction by limiting concurrent access. – If your code allows six concurrent accesses, then your library would be in violation of both contract law and copyright law (because authors have the right to control access). 2/12/2022 SW law 14

A Question about Copyright If a copyright is about to expire, can the copyright owner insist that the document be “destroyed” after expiration? – Yes, if the library agrees to sign the contract. – No, such contracts are unenforceable because the “public good” served by a copyright (of a limited-term monopoly to control access) would be subverted. Note: the term is 75 years or more. – Which legal theory will apply in the US? Elsewhere? 2/12/2022 SW law 15

Another Legal Question Can a copyright holder insist that a digital library add software security that would prevent any unauthorised readings or “private performances”? – Yes, this is a reasonable restriction, otherwise a single copy at an online library will make it very difficult for an author to sell any more copies of their work. – No, private performances and “fair use” copying (e. g. for education and research, within limits) is expressly allowed by US copyright law. – Which legal theory will apply in the US? Elsewhere? 2/12/2022 SW law 16

Conclusion • This article poses some intriguing questions in public policy, regarding how copyright does (and “should”) affect digital libraries. • I would strongly recommend it to any computer science major who shows any interest in digital libraries, computer law, or public policy. 2/12/2022 SW law 17

The DMCA • Soon after Samuelson wrote her article, the US Congress passed the 1998 Digital Millennium Copyright Act (DMCA). • From IEEE Computer, Jan 2001, p. 30: – The DMCA made “it unlawful [in the USA] to circumvent technologies protecting access to copyrighted digital works such as software and music. ” – The US Copyright Office “decided to permit users to bypass intellectual-property protection software only to determine which Web sites are blocked by filtering software and to work with materials protected by malfunctioning or obsolete access-control mechanisms. ” – No other exemptions were granted. • I foresee some interesting litigation! – Is copyright-protection software “malfunctioning or obsolete”, if it doesn’t allow a “fair use”? – Will any “reverse engineering” defense be successful? 2/12/2022 SW law 18

DMCA Prosecutions • Dimitri Skylarov’s company Elcomsoft was found innocent of its alleged criminal violations of the anticircumvention provisions of the DMCA. – “Merely offering a product that could violate copyrights was not enough to warrant a conviction. ” – http: //www. wired. com/news/business/0, 1367, 56898, 00. html • “… Johansen has been acquitted of all charges in a trial that tested the legality of the De. CSS DVD decryption utility he produced. ” – http: //www. theregister. co. uk/content/4/28749. html 2/12/2022 SW law 19

New Zealand Copyright • In 2001, the Ministry of Economic Development published a discussion document “Digital Technology and the Copyright Act 1994”. • Submissions closed on 21 February 2003, on NZ MED’s preferred policy response. • See http: //www. med. govt. nz/buslt/int_prop/digital/, available March 2003. 2/12/2022 SW law 20

Ethical Issues in Computer Security (§ 11. 5 of Pfleeger) “… an understanding of ethics can help in dealing with issues of computer security” 2/12/2022 SW law 21

Outline of Pfleeger § 11. 5 • What is ethics? – “Through choices, each person defines a personal set of ethical practices [when deciding right actions from wrong actions]. ” – Ethics is not law, not religion, and not universal. • Principles of Ethical Reasoning – How to examine a case for ethical issues. – Taxonomy of ethics: consequence vs rule-based; individual vs universal. A contradiction? F You make choices every minute, are all your choices ethical? 2/12/2022 SW law 22

Universal, Rule-Based Ethics • Pfleeger suggests the following “basic moral principles” are “universal, self-evident, natural rules”: – The right to know – The right to privacy – The right to fair compensation for work F Should you expect users to obey these rules, when you are designing a security system? F Should you enforce these rules in your systems? 2/12/2022 SW law 23

Our Duties, from Sir David Ross • • Fidelity (truthfulness) Reparation (compensate for wrongful acts) Gratitude (thankfulness for kind acts) Justice (distribute happiness by merit) Beneficence (help other people) Nonmaleficience (don’t hurt other people) Self-improvement (both mentally and morally, e. g. learn from your mistakes) F Which of these duties support our “rights” to knowledge, privacy and compensation? F Are these universal duties, or merely “Western/Christian”? 2/12/2022 SW law 24

Christian Ethics, in brief (Huston Smith, 1989) • Moses: don’t murder, commit adultery, steal, lie. • New Testament: faith, hope, love, charity. • Golden Rule: “Do unto others as you would have them do unto you. ” F Which of these ethics support our “rights” to knowledge, privacy and compensation? 2/12/2022 SW law 25

Confucian Ethics, in brief • Jen (human-heartedness): “Measure the feelings of others by your own. ” • Chun tzu (mature person): “How can I accommodate you? ” not “What can I get from you? ” • Li (propriety): follow Confucius’ example, nothing in excess, respect for elders, … • Te (power of moral example): leaders must show good character. • Wen (the arts of peace): music, poetry, painting; contrast with the arts of war or commerce. F Which of these ethics support our “rights” to knowledge, privacy and compensation? 2/12/2022 SW law 26

Islamic Ethics, in brief • Economic: don’t charge interest (but you may invest for a share of profit); all offspring should inherit; 2. 5% to charity each year. • Social: racial equality, no infanticide, women must consent to marriage. • Military: punish wrongdoers to the full extent of injury done; honour all agreements; no mutilation of wounded. • Religious: “Let there be no compulsion in religion. ” (2: 257) F Which of these ethics support our “rights” to knowledge, privacy and compensation? 2/12/2022 SW law 27

Conclusion • Because ethics are personal, and conditioned by our cultures, they won’t “always work” as a control in any security system. (But all controls are imperfect!) • I believe security engineers must consider how their systems will affect (and be affected by) the ethics of the likely users. 2/12/2022 SW law 28

Professional Codes of Ethics • Most professional organisations, such as the IEEE, the ACM, and the RSNZ, have codes of ethics. • If you transgress a professional code of ethics, your organisation may revoke your membership. • Examine the IEEE Code of Ethics. Is it congruent with Confucian ethics? Explain. • Examine the RSNZ Code of Ethics. Is it in conflict with the IEEE Code of Ethics? Explain. • CPSR is a political-action group, composed of computer professionals. Are its “Principles” a code of ethics? Explain. 2/12/2022 SW law 29

“Who Will Own Your Next Good Idea” Charles C Mann The Atlantic Monthly, September 1998 “[In 1997], copyrighted material contributed more than $400 billion to the [US] economy and was the country’s single most valuable export… But opposing pressures from the Internauts who want to open copyright up and the software publishers who want to clamp it shut [are pressuring us] to change laws today to fit a tomorrow we can only dream about. ” 2/12/2022 SW law 30

Contents • Copyright for books, movies, music and software – Historic development: French, English and American – Present: piracy in Hong Kong, Stallman’s Free Software Foundation, database copyright, Digital Millennium Copyright Act – Future: e-books, ©-chips, fears for authors & culture • Validity of shrink-wrap and click-wrap contracts F The author of this essay is deeply concerned about copyright. Do you share his concern? 2/12/2022 SW law 31

Historic View of Copyright “Economists and historians tend to be exasperated by comments like ‘The advent of the web is the most transforming technological event since the capture of fire (Perry Barlow)’. ” The essayist draws parallels and lessons from the French, British and American experience with copyright since 1557. 2/12/2022 SW law 32

Copyright in the French Revolution • Prior to 1789, “privileged booksellers” were prey to pirates, and authors had few rights. • Privilege was abolished in the Revolution. • Culture suffered when no “serious books” or “great texts of the Enlightenment” were published. • In 1793, authors were given power over their own work lasting until ten years after their death. 2/12/2022 SW law 33

A Brief History of (British and) American Copyright • 1557: Stationers’ Company gains control of all printing and book sales, authors have few rights. • 1710: Writers gain control of works, but only for 14 years (renewable once). • 1774: House of Lords affirms that the rights of authors and publishers are temporary so that the “products of the mind always return to their real state: owned by no one, usable by everyone. ” • 1776: US declares independence, starts to develop its own laws and theories of copyright. 2/12/2022 SW law 34

American Copyright Since 1776 • 1790: US Copyright Act passed: 14 year term with one renewal. • 1790 -1998: US Congress repeatedly extends the term of copyright. • 1998: Copyright protection is extended to databases. • 1998: Digital Millennium Copyright Act makes it illegal (in the US) to subvert “©chips”. 2/12/2022 SW law 35

Ethical Analysis of Copyright • Samuel Johnson: “For the general good of the world, ” a writer’s work “should be understood as belonging to the publick. ” To which of Pfleeger’s “rights” does this argument refer? F The public’s right to information. • Richard Aston: it is “against natural reason and moral rectitude” that a government should “strip businesses of their property after fourteen years. ” F The publisher’s right to compensation. 2/12/2022 SW law 36

Chinese Ethics of Copyright? • The Hong Kong piracy stories were told from a “Western” viewpoint. – Barlow saw “not the slightest trace of moral anxiety” in the salesclerk’s face, when she learned that the author of the software was trying to purchase a pirated copy. • What is “fair compensation for work” in China? – Multinationals might pay USD $0. 11/hour for labour. • “Li”: Which if any of the Confucian relationships would lend support to Western notions of copyright? • “Wen”: Mandarins should produce (but not sell) art. • What were Mao’s thoughts on copyright? 2/12/2022 SW law 37

Conclusion • Copyright law is a delicate balance, developed over centuries, among the rights of authors, publishers and the public in Western democracies. • Technological developments and international commerce are forcing rapid change in copyright law. There hasn’t been enough time for wisdom! 2/12/2022 SW law 38

“Steal this Software” Hillary Rosner The Standard. com, 19 June, 2000 “Never paying for software is a point of pride among tech insiders. The Internet is making it easier for outsiders to join this jolly band of software pirates. … [Adobe] estimates that as much as 50 percent of the company’s software in use today is stolen. ” 2/12/2022 SW law 39

Outline • How and why “insiders” [crackers] steal software • How “outsiders” (like you) could steal, too. – Napster, Gnutella, Freenet, Hotline • For the foreseeable future, it will be difficult for any publisher to prevent the piracy of its software products. 2/12/2022 SW law 40

Software Piracy in Hotline • “Cracked” software (“warez”) can be downloaded inexpensively, if you “go through a series of links to obtain a username and password” to a Hotline server. • “Most Hotline servers are maintained by people – who have no interest in software and are just in it for the money they can make when software seekers click through the ads. . . – … The rest are college kids and anarchic programmers in it for the thrill. ” 2/12/2022 SW law 41

Rosner’s Ethics of Software Piracy • “Insider’s entitlement”: if you’re clever enough to find “warez” then you deserve to have it without paying. • If you buy any software, then you’re also in danger of buying the [Brooklyn] bridge if someone tried to sell it to you. [This is an old joke in America, making fun of naïve immigrants. ] F Is this an accurate description of cracker (phreak) culture? 2/12/2022 SW law 42

The New Hacker’s Dictionary • See http: //www. tuxedo. org/~esr/jargon • A “lamer” is someone who “scams codes off others, rather than doing cracks or really understanding the fundamental concepts. ” • If this dictionary is an accurate reflection of cracker culture, then the warez available to non-crackers on Hotline must be pretty lame. 2/12/2022 SW law 43

Ethics of Software Piracy • If crackers only share with other crackers, who (if anyone) is harmed? – Legal analysis: the author and the publisher (who may assert their rights under the laws of contract, copyright, trademark or patent) – Ethical analysis: rights of knowledge vs compensation • Is it worse if crackers post warez for lamers too? – Legal analysis: yes, more damage is done. – Ethical analysis: what rights do lamers have to this knowledge? 2/12/2022 SW law 44

Conclusion • If crackers post warez for lamers, then the scale of software piracy increases greatly. • Napster was the target of many lawsuits after the scale of MP 3 piracy became too large to be ignored. Almost anyone (even a lamer ; -) with a computer could download music from Napster. • Watermarks (on software, music, and video) may allow crackers to be traced. 2/12/2022 SW law 45

Cyber. Soft, Incorporated Moral Guidelines Peter V Radatti, May 1995 http: //www. cybersoft. com/papers/locks. html “People who are responsible for security can only do their jobs if they understand the true nature of the problems they are combating… This argument was well made [in 1853] and there is no reason to reinvent the argument now. ” 2/12/2022 SW law 46

Rudimentary Treatise on the Construction of Locks, 1853 Charles Tomlinson • “Rogues knew a good deal about lockpicking long before locksmiths discussed it among themselves. ” • “If a lock… is not so inviolable as it has hitherto been deemed to be, surely it is in the interest of honest persons to know this fact. ” 2/12/2022 SW law 47

Tomlinson’s Argument (cont. ) • “The inventor produces a lock which he honestly thinks will possess such and such qualities; and he declares the belief to the world. If others differ… the discussion, truthfully conducted, must lead to public advantage. ” • What is your ethical analysis? (Right to information vs ? ? ) • Would your analysis change if the “lock design” were protected by trade secret? 2/12/2022 SW law 48