Ethics, copyright, law
Readings
p. 86; 
Lynch & Horton, pp 1-13.
For discussion
In 1997 Mark Napier created a hip website "distorted Barbie" parodying that cultural icon-- the Barbie Doll. He took photos of Barbie dolls, and then digitally modified them to create, for example, a "Kate Moss" Barbie, and a "Bjork" Barby.
Mattel was not amused and tried to have his site taken down.
On what legal basis might Mattel have made its case? On what basis could Napier have defended himself?
Two perspectives
We operate from two different sides of the issues:
- As designers/authors concerned about how our creative work is valued.
- As users of the work of others concerned about how their work is and should be protected.
New technology => Legal change
- The concept of copyright arose after the invention of the printing press.
- When broadcasting arose early in this century, the government established the Federal Communications Commission.
- What new legal concept will arise in the wake of the web revolution? (DMCA)
The process of creating/editing symbols, and distributing them to audiences looks very similar to publishing a magazine or producing a television show.
In general, many of the laws which apply currently to publishers and broadcasters in the United States, apply to the web as well. The medium is new and different, but the process of creating symbols (verbal and non-verbal), editing them, and distributing them to audiences looks very similar to publishing a magazine or producing a television show.
In addition, new laws have been passed that apply specifically to the Internet. So web users are not immune from legal liabilities.
Law follows Ethics
- Old Testament: You shall not: Steal; Bear false witness; Covet ... anything that is your neighbor’s
- The 10 commandments were not handed to Adam and Eve.
- New Testament: Love your neighbor as yourself.
Law usually follows ethical practice and experimentation, and not vice versa.
Our law in the West grows out of the Judeo-Christian tradition, which, of course, is informed by the Bible. As a nation, state, and community, we have encoded in our laws many of the patterns, practices, and actions that we as a society have deemed beneficial to us.
U.S. Constitution
The Constitution provides the foundation for U.S. communication law. We pay particular attention to the First Amendment:
"Congress shall make no law. . . abridging the freedom of speech, or of the press;"
Yet, we have many laws: slander, libel, truth in advertising, obscenity, etc. that set limits on "free speech".
Libel
"A false and defamatory attack in written form on a person's [or organization's] reputation or character"
"Imputations of crime, gross immorality, criminal associations, financial unreliability, incompetence, or irresponsibility"
Defenses for libel
- Truth -- can you document the truth of the statement?
- Privilege -- Those taking part in legislative debates or court debates (or those quoting them...in context) are exempt from libel.
- Fair comment and criticism -- is allowed of someone who places themselves in the public eye. "The mouths of their rancid features opened like caverns...."--but not of someone's private life.
If you defame someone, you as a web creator could be sued and held responsible for libel. If you knowingly distribute a libel (be careful what you forward by e-mail!), you could also be charged with libel.
Obscenity
... is an offense to our sensibilities
- Does the message appeal to prurient interest?
- Is the message devoid of scientific, political, educational, or social value?
- Does the message violate the local community standards?
Recent Supreme Court controversy surrounds the use of images that appear to be minors engaging in sexual activity, but does not involve real people as subjects of the video because the work is computer generated.
A definitional quagmire–one person’s pornography is another person’s art (at best)
Communication Decency Act Passed by U.S. Congress in 1996 as part of a larger telecommunications law President Bill Clinton signed the law in February 1997, and it was ruled unconstitutional in June 1997.
Questions about obscenity
- How to enforce such a law?
- How to determine if an on-line user is 18?
- How to decide what words and images are "indecent" or "patently offensive?" or lack "redeeming social value?"
- How to hold liable creators of sites on servers outside the U.S.?
Copyright
See: ITS' copyright page
Copyright law protects the creative works of writers, artists, and inventors of symbols of all types. The basis for copyright law is given explicitly in the U.S. Constitution:
Copyright protection begins
...from the moment of creation in a fixed or tangible form. You need not take any action to enjoy protection, but in order to make your claim easier to enforce, you may:
- use the copyright symbol to indicate the owner © 1998 Stuart W. Showalter
- or register your copyright with the government.
Remember: you may waive your right to a copyright
Creations protected include: stories and poetry, sound recordings, musical compositions, television programs, motion pictures, photographs, advertisements, and web pages
Copyright protection ends
- Life of the author + 70 years
- Work created for an employer: 95 years
After copyright expires, creative work becomes a part of the public domain
Free culture
...is the title of a talk given by Lawrence Lessig, expressing concerns about the length of copyright and its effect on culture.
See also Creative Commons search.
Fair use
Limited reproduction of another’s work is allowed for the purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."
Fair use guidelines
- Purpose and character of the use?
- The nature of the work copied?
- Amount of the work in relation to the whole?
- Effect of the use on the market for the work?
Citing the source of a creative work will show your intent not to mis-use another’s work, but it is not a defense.
What constitutes fair use? Guidelines are imprecise and difficult to interpret:
Those who blatantly disregard copyright law, usually distributors in other countries who appropriate creative works, engage in piracy
Factual information and most words themselves – unless they are a registered trademark (indicated by ®, e.g., Coca-Cola®) – may be freely borrowed from others. However, imitating another’s particular wording or writing style puts us at risk for copyright infringement.
DMCA
The U.S. Digital Millennium Copyright Act of 1998 (see Educause resources) covers new areas, such as the responsibility of ISPs and colleges for copyright violations hosted on their networks.
Most controversial has been Section 1201 which prohibits "circumvention" of copyright mechanisms.
This was originally presented as necessary to deal with pirating software/CDs/etc. But opponents claim that this clause has given too much power to large media companies and infringes on fair use.