Information Technology and the Law

I was flipping through MSNBC.com and noticed this article posted yesterday. It seems that despite the requests of the MPAA and RIAA to reveal the identities of specific students they feel are violating copyright laws, the Universities they appeal to may have an option to not disclose who it is. In other words, revealing the person’s identity is contrary to their privacy rights! Please read below:

Schools don’t have to identify music pirates

‘CadillacMan’ and ‘hulk’ will remain anonymous, judge rules.
The Associated Press
Updated: 4:45 p.m. ET April 27, 2005

RALEIGH, N.C. - A federal magistrate has ruled that two North Carolina universities do not have to reveal the identities of two students accused of sharing copyrighted music on the Internet.

The music industry trade group, the Recording Industry Association of America, filed subpoenas in November 2003 asking for help identifying a North Carolina State University student who used the name “CadillacMan” and a University of North Carolina-Chapel Hill student who used the name “hulk.” The students allegedly file-swapped songs using the universities’ computer systems.

Both schools initially were willing to cooperate, but later joined attorneys for the students in opposing the request, U.S. Magistrate Judge Russell A. Eliason wrote in his order, which was filed earlier this month.

An attorney representing “Jane Doe,” the University of North Carolina student, said he was not concerned about allegations of music piracy but whether identifying her would violate privacy rights.

“We would never condone music piracy,” attorney Michael Kornbluth said. “What we’re interested in is the rights of the individual — privacy rights being protected.”

University of North Carolina administrators were pleased with the order but do not condone students’ downloading copyrighted information, school spokeswoman Lisa Katz said.

You can access this article at MSNBC.com, or click the following link.

Being Canadian I may have a slightly skewed understanding of the First Amendment than all of my American colleagues, as our legislation does not contain such a definition of freedom of speech. In our Charter of Rights and Freedoms, this basic right is outlined below as Section 2 of the Canadian Consitution Act of 1982:

(2) Everyone has the following fundamental freedoms:

• Freedom of conscience and religion;
• Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• Freedom of peaceful assembly; and
• Freedom of association.

In our definition the key point is bullet #2, particularly the phrase, “including freedom of the press and other media of communication.” This varies significantly from the US counterpart, whose pertinent phrase from the First Amendment, “Congress shall make no law…abridging the freedom of speech, or of the press” does not explicitly take into account other forms of communication besides the press. It may be the fact that this is directly implied by the language in the Amendment, yet in comparison it still is not specifically addressed. Granted the Canadian version was ratified much later than the US version, but in our form of Freedom of Speech, “other media of communication” is a major proponent of the definition and explicitly defines any form of communication to be protected. In this respect, a lot of the discussions we’ve had in class lately can be viewed quite differently if viewed with the Canadian perspective in mind.

Normatively speaking I think it is fair and correct to attempt to regulate the behavior of government funded institutions, as the government by definition represents the best interests of society as a whole. We spoke in class earlier about the Miller Test for obscene materials, and in particular the first prong of its definition. In this case, what the federal government as a whole deems to be obscene would make me feel much more comfortable than something that a given community might feel. Since citizens of the United States actively elect their government representatives, these people must act as the voice of the citizens themselves, presenting the general sentiment of the people they represent. As a result, the Miller Test should be made to take into account the classifications of the federal government and not the “community standards” which can be extremely biased depending on a given location. One logical point that was brought up in class discussions is that the First Amendment should not be applied differently depending on which particular part of the nation you were standing in. Instead, it was envisioned to be a blanket of security that would hold anywhere within the borders of the United States.

To clarify, however, I feel that the government’s actions should still be well within the law and rights of its citizens. With respect to the discussion today, I think that the distinction must be made clear that the Internet itself is not under attack for censorship of any kind. Instead, the government’s intention is to limit the access that users have on the Internet at government funded libraries. Constitutionality aside, I think that the broad blanket censorship is unfair and against the intuition of the freedom of speech. At least with respect to the Canadian definition, the freedom of speech includes the freedom of communication via any medium and therefore constitutes the right of Internet users and content creators to conduct their transactions safely. Although the content may not be to parallel with a particular person’s taste, there always exists the option of not visiting the specific page in the first place. Yet the key fact remains that if they person wanted to visit the page, they could. In my opinion, the implementation of filters would inhibit this capability and therefore be an inherently unconstitutional act.

Yet the government does have a vested interest in limiting the content that children can access at these public libraries. The distinction that must be made is that the proposed legislation is to protect the interests of children, or minors, from viewing obscene material. Instead of a blanket filter system that was implemented on all government-funded library systems, there should be a choice to disable the system altogether, much like the system proposed in class today. Of course this choice must be offered only to adults as they are of sufficient age and maturity to decide what and what not to view, but this would help deflect any charges of unconstitutionality and still manage to solve the problem. By limiting the access that children themselves could have is not an unconstitutional move and will limit their exposure to obscene materials. To implement this, there are many different possibilities ranging from library logins to separate monitored computer clusters in larger libraries. Yet the key point is that there must be a choice for adults whether to keep the filter on, or to remove it when trying to access information via the Internet in a government-funded library.

Thinking rather abstractly I come to the comparison of this type of filtering to the rating system for movies in the United States. Again, the Canadian system is much different from the American counterpart, but I will not include that here. In either case, movies deemed to be inappropriate for minors under 17 are designated with an NC-17 rating, explicitly barring children under 17 from viewing the movie. Although these theatres aren’t government run and the rating are imposed by the Classifications and Ratings Administration, the movies are free of unconstitutionality claims which limit the audience that can view them. In this case there are people that are excluded from the movie without protest from the viewing audience. If this type of situation can be devised for the Internet information viewing within government-funded locations, then there will be no claims of unconstitutionality by library patrons or other concerned organizations. In other words, these designations help restrict access to material deemed to be inappropriate for minors, so why can’t the filtering technology for the Internet be applied in the same way?

  In reading Nitin’s post on the issues surrounding ICANN, I must say that I agree with his general belief that a rotating board and increased government attention is necessary to keep ICANN in check. In light of the discussions in class, I also agree with the overall consensus that there needs to be more authority over the functionality of an entity like ICANN, but I disagree that an organization like the United Nations is a poor choice for the governing body.

  I tend to lean toward the European Union’s stance in this matter as briefly alluded to in the ICANN Watch document. Although the group is considered to be comprised of international members, essentially it is still the US Government that maintains “control” over ICANN and therefore, by extension, over the Internet as a whole through the California Department of Commerce (DoC). While this was implemented with the best intentions in mind, it still does not reflect the truly global nature of the Internet. In the early days of Internet connectivity, global interaction was not nearly at the level of interaction today. Thus, the relations between the DoC, Network Solutions, Inc and the National Science Foundation were understandable in 1992 when initially formed. Yet following the explosion of Internet popularity in the late 90s, the inception of ICANN was riddled with legitimate complaints. The major difficulty surrounding its inception is that ICANN doesn’t really fit into any known category for corporations. On the one hand, it is a non-profit organization that is supposed to represent the best interests of the global Internet community, but with US Government oversight, the ICANN group is basically restricted to following the interests of American policy first and international policy second, thus creating “understandable concern about the control of a critical element of a global communication resource” from non-American global consumers. Furthermore, although the group has tried to model itself as an administrative agency, it does not adhere to the Administrative Procedures Act of the US government. This point is important to note because it shows the shady character of ICANN in general. Although it’s meant to be somewhat under the control of the DoC, it still doesn’t adhere to any set laws or acts in the US system. Thus, who is really in control of the controllers?

  As it stands now, there is great need for centralized control over DNS naming rights and policies throughout the world. Normatively speaking, this is one point that everyone seems to agree with. As a result of this global requirement, I believe that the DoC must relinquish its control over ICANN to a body like the United Nations so as to promote a truly international naming convention. Nitin is correct in pointing out that “there are steps that the DoC can take to make ICANN more accountable, to avoid potential conflicts of interest on the part of the directors and to avoid needless power-clinging.” Yet these actions have the best interests of the American nation in mind foremost over any other international interest, thus creating an ironic control over ICANN. As mentioned previously, in the early days of the Internet the US played a major role in its composition. However, today’s world reflects that the Internet has become a widely used tool of global commerce and intercommunication, and as such must move away from a single governing structure to an all-encompassing one. In other words, ICANN must be remade in the world court as opposed to one individual nation so as to benefit the true interests of all nations. Otherwise, although the specific nation may have the best intentions in mind, it is impossible for the governing body to completely impartial in designating policy or resolving international disputes. The only remedy is to base the governing body in the world court. In this manner, there is representation from international participants in the functionality of the governing organization and more justly represents global interest.

  The rotating board policy outlined in Nitin’s post is a solid method of ensuring that the true intentions of Internet Governance by the committee/organization/administration are maintained and that conflicts of interest are limited. Furthermore, to answer his question, these members should be appointed by an external agency like the UN in order to have better global representation and accountability for selections. Each member appointed can be elected as before, but the key distinction here is that the election/appointment is performed by an internationally observed and accounted for entity like the UN, and not in secret by an undisclosed method for a relatively shady outfit. This adds legitimacy to the representatives appointed and therefore offers the administration a solid basis for attempting to govern a most difficult medium.

  The current status of ICANN and “internet governance” as we know it now is in widespread debate and doubt, a situation that is detrimental to global commerce and intercommunication. To correct this, a rotating board appointed and overseen by the United Nations is the answer to justly governing the global nature of the Internet.

You can check out the arguments posted by the RIAA here. This is their version of what’s going down and what they’re doing about it.

  This week I wanted to try and comment on the recent activity surrounding Internet2 users and the lawsuits being distributed by the RIAA. What intrigues me most about the article are Cary Sherman’s quotes throughout, particularly in relation to the RIAA’s penetration of the Internet2 network.

  After conducting some research on what specifically the network is, I discovered that essentially the Internet2 is a consortium of over 200 universities nationwide, coupled with other non-profit organizations that have grouped together. As noted on their website, the main goals of Internet2 are to:

• Create a leading edge network capability for the national research community
• Enable revolutionary Internet applications
• Ensure the rapid transfer of new network services and applications to the broader Internet community

  While the goals of the consortium are interesting in their own right, what’s more to the point is the membership restriction that they place on use of the technology. In other words, in order to have access to the high-speed network being researched, users must belong to one of the member organizations registered with Internet2. Any academic institutions are eligible for Regular membership, non-profit organizations for research and education purposes are eligible for Affiliate status, and finally for-profit groups are eligible for Corporate memberships. In any case, the applying outfit must outline their “relationship to research and education, and its R&D focus.” This is the key part that pertains to the comments Sherman made in the aforementioned article. Essentially the RIAA managed to gain access to the membership protected Internet2 network and to use their own technology to track the illegal sharing of music files. Although the evidence of illegal file-sharing is abundant, the case remains as to how the RIAA obtained access to the network without permission from Internet2. According to Internet2’s chief executive Doug Van Houweling, the RIAA had never been granted access to the network and further states that

“ we have provided no special access to any of [the entertainment] organizations that would enable them in some non-standard way to gain access to this information.”

  The only response for Sherman was reassurance that the RIAA obtained access lawfully, but he refused to explain how this was done.

  With respect to the conversations we’ve had recently about the Computer Fraud and Abuse Act and the hypotheticals we’ve presented, this type of penetration seems to fall into another one of those hypothetical situations and refers to a comment that I brought up in our session on Monday. Jon Epstein asked that to what extent the use of a technological measure to protect network access constitutes a defense of the property. If there is a password protection scheme enabled on a network resource, yet the password is common knowledge to others, then does the defense seem credible? In my opinion, I feel that there must be some burden placed on the owner of the network resource being accessed to ensure that their protection scheme is in fact solid to the best of their knowledge. In this case, Internet2 has chosen to implement a membership scheme in which the only way to access the network resources is to become a member of the consortium. I’m not particularly sure how the access is granted (if they send the new member the access files or whatever), but in either case membership must be issued from Internet2. Effectively they are limiting who can and cannot obtain access to the protected network resources. Here, the RIAA seems to be intruding into a network that they don’t have explicit permission to be in, and therefore presents a clear case of either trespass to chattels (as we’ve seen before) or a violation of the Computer Fraud and Abuse Act, an actionable offense by the RIAA. If the RIAA obtained access through one of the actual members of the consortium, then that member is in direct violation of their membership terms since they are granting access for someone that hasn’t paid for access (sounds familiar to the piggybacking off the neighbor’s wireless network). Either way, the bottom line is that the RIAA claims to have accessed the network through legal means without actually disclosing those means. From the interpretations I have of the statutes, this is not a legal access to the network and therefore presents the Internet2 consortium with an opportunity to sue the RIAA for illegal access.

  If this should come about, then it would present a somewhat ironic situation for the RIAA; on the one hand they are suing internet users for illegally obtaining and sharing music files, while on the other they obtain illegal access to networks in order to catch these lawbreakers. This is one situation that I will most definitely follow closely!

As a side note, I was checking out CNN.com and noticed that there are some schools now that have been working in coalition with some p2p networks and certain recording industry major players to begin combating the piracy of music and movies.

For example, University of North Carolina entered into an agreement with Sony BMG to allow unlimited free downloads of their songs by UNC students in return for $150,000 from the school. Eventually, the plan is to charge students an additional fee in their tuition to include the unlimited subscription service.

However, the key downfall right now is that the songs are only playable on one’s computer and can’t be ported over to an iPod or other mp3 player. Also, once the student graduates, they must begin paying an subscription fee to the song providers or the songs will no longer be playable on their computers either.

Also, some of these programs are considered “tether” programs in that each student that downloads music or movies from the service must reconnect to the service once every 30 days in order or once again their files will be rendered useless.

I think this is an interesting move on the part of Napster, Sony BMG, Sea Blue Media and the other companies attempting to recreate a solid connection with the students in colleges across the nation. Since these companies feel that the college population is simultaneously their greatest source of income and greatest source of piracy, the burden must be shared both by internet users and the companies themselves to provide logical solutions to the current situation. As Sony chief executive Andrew Lack says, “we’ve got to bust down all those walls” that limit internet users from sharing and transferring their files online and I think that this might be a solid step forward in the process.

You can read more at CNN.com, or follow this link.

Taking a sharp turn from our latest discussions about trespass in the “not so tangible” realm, I would like to comment on copyright and the underground market for online music videos. To my knowledge this has not been discussed in class and I can’t remember off-hand any discussion of electronic trading of TV shows in general. However, I would like to focus on music videos because I feel this is an area that might be overlooked by the law.

In general, people can copy music videos to a digital recorder like the TiVO relatively easily, as with any other TV show. From here, the videos are then “ripped” to the user’s computer, edited to make sure sound quality and video quality are ideal, and then passed throughout the internet via BitTorrent, mIRC, webpages and other p2p programs. Essentially, what I question is whether this is fair use of the videos and whether trading them or posting them for download on the internet is actually a legal practice.

As precedent sets forth, time-shifting of programs for personal enjoyment has always been held as a fair-use of the broadcast. In this respect, elements like the VCR and today’s TiVO are allowed to operate legally within households across the nation. However, I see two places at least where this distinction becomes fuzzy. First, when users copy the broadcast from their TiVO to their computer, this generally involves producing a derivative work as the video must be edited or altered to ensure proper quality, thus a use not protected under fair-use doctrine; and secondly when the user shares the video with other users on the Internet, another element that is not protected under fair-use and therefore should fall under copyright infringement.

With respect to the first point, when transferred from TiVO to computer, the music videos experience some degradation from original input levels, as most computer graphics/audio cards cannot handle the high resolution of the images and sound, particularly ones transmitted on digital cable. As a result, the copier must alter the video and usually add sound to the video which in most cases is the mp3 version of the song itself. Thus, by adding the song to the video, does this also constitute an illegal use of the .mp3 file, even if the user has the CD and legally ripped the song to their computer. I think that yes, this does constitute infringement. To see an example of what I mean, please compare these two videos, both of the same song by the same artist. In one case, the video is an exact copy of the broadcast (you can tell by the crowd chants), and in the second case the mp3 has been added to the video.

The videos are the song Going Under by Evanescence. The edited version was ripped by Videopimp and the unedited version by Zone.
Without editing: Zone.mpg
With editing: Videopimp.mpg
Please right-click and select Save Target As…

Yet the song being added is not the only infringement that I see from this type of copying. The recording generally is taken from MTV2 or other similar channels and bears their branding in the video itself. Most people don’t erase the logo from the video when they rip it to their computers and therefore are infringing copyright and trademark of the broadcasting company. However, does the initial fair-use of the video delimit the power that the broadcasters have in maintaining their copyrightability? In other words, once the initial time-shifting has been made, and then the video is transferred to the computer, has it lost its ability to enforce copyright? I think that once copied from the initial recorder to the computer, the copyright remains intact since the user is now creating a new derivative copy of the original (essentially a copy of a copy).

It follows from this discussion then that trafficking of these videos on the Internet should not be legal according to the precedent we’ve seen and the law as I’ve interpreted it. I must admit that personally I am a fan of music videos and download them constantly (hence noticing the difference between the two examples!). I note now that it seems to be a hypocritical stance to take; on the one hand I advocate that this type of behavior should not be legal while I still traffic in the videos myself. In either case, I feel that the music video market itself needed to be addressed with respect to copyright since it does seem to be yet another gray area that will be difficult to properly classify.