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 6

Wednesday, December 29, 2010 1

Digital Piracy
Criminalization of Copyright

NET Act

DMCA

Banning of Technology

P2P Networks

Circumvention Devices


The House Report further commented on the novelty of such a
ban, concluding that Congress has "historically advanced th[e]
constitutional objective" of the Copyright Clause of the
Constitution by "regulating the use of information—not the
devices or means by which the information is delivered or
used by information consumers—and by ensuring an
appropriate balance between the interests of copyright owners
and information users."

The Senate Report was also cognizant of the moral agency
problem and the means-ends relationship when it noted that the
circumvention device bans “drafted carefully to target 'black
boxes,' and to ensure that legitimate multipurpose devices can
continue to be made and sold."


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 Knowledge


"In a common source epidemic, as where members of a population contract
a non-contagious disease from a poisoned well, the disease spreads only by
exposure to the common source. If one eliminates the common source, or
closes 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 further
spread; the "disease" can travel from person to person and is not easily
stopped. Judge Kaplan continued in a detailed explanation of how DeCSS and
a communicable disease are similar, likening infringement to a disease
outbreak and presumably the 2600 web site as the poisoned well. Kaplan's
sarcasm is revealed when he notes that the "disease metaphor breaks down
principally at the final point. Individuals infected with the real disease become
sick, usually are driven by obvious self-interest to seek medical attention, and
are cured of the disease if medical science is capable of doing so. Individuals
infected with the 'disease' of capability of circumventing measures controlling
access to copyrighted works in digital form, however, do not suffer from
having that ability … their self-interest will motivate some to misuse the
capability, a misuse that, in practical terms, often will be untraceable."


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 & Functionality


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 Approach


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 Engineer


The causal chain of information-processing
technology is further distributed into three stages
between the design and the action. In the program
design stage, the software engineer encodes a design
into a language that can be translated by the
computer. The second stage consists of the
computer turning the programmed design into a set
of working instructions in machine-readable form.
The final stage is the performance of its functions
according to the instructions.


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 designer


Though it is a thin line between
looking to the functionality to
discern the designer’s intent and
assigning intent to functionality,
the moral implications of the two
are significantly different.


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 Architectures


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 Itself


P2P II

Ideology of Peer Production

Alternative Distribution System

Distinct from Piracy Harm


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 Activity


DRM II

Proprietary vs. Open Architectures

Trafﬁcking as Communicable Disease

The Politics of Decrypting Closed Systems


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