Copyrightcontraband

Copyright Contraband E d d a n K a t z E x e c u t i v e D i r e c t o r I n f o r m a t i o n S o c i e t y P r o j e c t 4 S 2 0 0 7 Va n c o u v e r , C a n a d a N o v e m b e r 2 , 2 0 0 6Wednesday, December 29, 2010 1

Digital Piracy Criminalization of Copyright NET Act DMCA Banning of Technology P2P Networks Circumvention DevicesWednesday, December 29, 2010 2

The House Report further commented on the novelty of such aban, concluding that Congress has "historically advanced th[e]constitutional objective" of the Copyright Clause of theConstitution by "regulating the use of information—not thedevices or means by which the information is delivered orused by information consumers—and by ensuring anappropriate balance between the interests of copyright ownersand information users."The Senate Report was also cognizant of the moral agencyproblem and the means-ends relationship when it noted that thecircumvention device bans “drafted carefully to target blackboxes, and to ensure that legitimate multipurpose devices cancontinue to be made and sold."Wednesday, December 29, 2010 3

Morality in Digital Network Environments Entertainment Industry Framing File-Sharing is Stealing Hacker Tools as Virus Technology & Responsibility Unraveling the Property Paradigm Misattribution of Moral Agency in Technology Towards an Ethics of Access to KnowledgeWednesday, December 29, 2010 4

"In a common source epidemic, as where members of a population contracta non-contagious disease from a poisoned well, the disease spreads only byexposure to the common source. If one eliminates the common source, orcloses the contaminated well, the epidemic is stopped." The point of the analogy was to make it apparent that stopping "the source"of the disease, in this case DeCSS dissemination, will not prevent furtherspread; the "disease" can travel from person to person and is not easilystopped. Judge Kaplan continued in a detailed explanation of how DeCSS anda communicable disease are similar, likening infringement to a diseaseoutbreak and presumably the 2600 web site as the poisoned well. Kaplanssarcasm is revealed when he notes that the "disease metaphor breaks downprincipally at the final point. Individuals infected with the real disease becomesick, usually are driven by obvious self-interest to seek medical attention, andare cured of the disease if medical science is capable of doing so. Individualsinfected with the disease of capability of circumventing measures controllingaccess to copyrighted works in digital form, however, do not suffer fromhaving that ability … their self-interest will motivate some to misuse thecapability, a misuse that, in practical terms, often will be untraceable."Wednesday, December 29, 2010 5

Isolating Criminal Copyright Criminal Law appeals to Moral Justiﬁcation Distinguish from deterrence & harm-based Actus Reus & Mens Rea Causation - temporal & spatial distances Intentionality - multiple uses of technology Copyright Contraband Penalizing Design & FunctionalityWednesday, December 29, 2010 6

technology & responsibility Ethical Notion Closely Related to Liability Provides bright line at copyright contraband Points of Inquiry: Designer, Distributor, User Technology as Mediator for Human Action Three Conceptual Frameworks Instrumentalist Approach Capabilities Approach Ideology ApproachWednesday, December 29, 2010 7

Instrumentalist Approach Means-Ends Relationship Widest Application across Technologies Clarity of Technology as Value-Neutral Descriptive Shortcomings in Cyberspace Causal Distance in Self-Regulating Machines Interconnectedness of Networks Fails to account for Designer or EngineerWednesday, December 29, 2010 8

The causal chain of information-processingtechnology is further distributed into three stagesbetween the design and the action. In the programdesign stage, the software engineer encodes a designinto a language that can be translated by thecomputer. The second stage consists of thecomputer turning the programmed design into a setof working instructions in machine-readable form.The final stage is the performance of its functionsaccording to the instructions.Wednesday, December 29, 2010 9

Capabilities Approach General Purpose Technologies Move from particular ends to potential purpose deﬁne by risk of harm & secondary effects Actual uses Secondary to potential uses overburdens ordinary uses tendency to inﬂate harms Between Designer & Functionality requires anticipation of improper & misuse Blurs functionality of device & intention of designerWednesday, December 29, 2010 10

Though it is a thin line betweenlooking to the functionality todiscern the designer’s intent andassigning intent to functionality,the moral implications of the twoare significantly different.Wednesday, December 29, 2010 11

Ideology Approach Vast Infrastructures Organizing Life Beyond Means-Ends Relationship Technological Embodiment of Values Diffusion of Causation Networks and Platforms of Information Technology as Self-Sustaining System Clash of Ideologies Evaluation of Overall Impact of Technologies Open vs. Proprietary ArchitecturesWednesday, December 29, 2010 12

P2P: the Prosthetics of Piracy? Relationship of Users to Technology Design Distributed File-Sharing Networks Levels of Participation as Proxy for Action NET Act: The Network’s Intent Making Available without Proﬁt Motive Criminal Liability for Ordinary Users Intentionality Imputed to the Network ItselfWednesday, December 29, 2010 13

P2P II Ideology of Peer Production Alternative Distribution System Distinct from Piracy HarmWednesday, December 29, 2010 14

DRM: Ideology of Permission Technology Regulating Behavior TPMs as Para-Copyright Preempts Unauthorized Uses DMCA: Second-Hand Infringement Replaces Betamax Capabilities Approach Ban on Circumvention Devices Functionality of Circumvention Separate from ActivityWednesday, December 29, 2010 15

DRM II Proprietary vs. Open Architectures Trafﬁcking as Communicable Disease The Politics of Decrypting Closed SystemsWednesday, December 29, 2010 16

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Copyrightcontraband

by Eddan Katz on Jan 05, 2011

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