Information Technology and the Law

At the risk of beating a dead horse, I would like to respond to Don’s objections to my analogy to international waters.

As he was so quick to point out, once a portion of the ocean is traveled across, a different vessel can travel across the same piece of water. He then made the claim that this is a bad analogy, since only one person can register a website at a time.

There are international organizations which represent the various interests on the ocean. Therefore, one must register oneself in several ways. First, one must register as crew, then advanced crew, ranging all the way up to Captain, any vessel any tonage. I would equate this to each person’s IP address, controlling which level of sites each person may access. This would help to define what is a reasonable amount of security on a site, and make clear how much effort one could expend to view a site (monday’s discussion).

Second, every ship must be registered in an international database. I feel this is the point Don was trying to make, for which the infrastructure is already in place. No two ships may be registered with the same name from the same country. This allows for www.johnsmith.ge and www.johnsmith.jp.

Finally there is arbitration. In any dispute, from rules of the ocean to violations of trade, the countries involved in addition to the international organizations come together to resolve the conflict. If the violation is in territorial waters, then it is between countries. If the violation is in international waters, there is precedent for dealing with violations.

I feel that this is a good system for the internet. I feel that an international organization should be set of to moderate the internet. I feel that it is inappropriate for the United States Department of Commerce to run the internet. The idea of the internet is like the ocean to me–there is a huge flowing net of information, which seems to be in a different plane. I like what is done with the ocean, and think the regulations of the internet could model that infrastructure.

I would like to play devil’s advocate for Jeff and Muoyo. I feel that it is appropriate for a corporation to make business decisions like Lexmark.

The key to my argument revolves around choice–in the current market, one always has a choice between competing products. HP, Xerox all have very similar products. Therefore, there if one chooses, he or she may purchase a Lexmark printer with or without the proprietary ink cartridges. I feel that this reasonable option makes Lexmark’s actions legal.

Further, I feel that there can be great benefit to such a system. As stated in class, several auto makers require certified service for their automobiles. If one chooses to maintain their own vehicle, or use non-certified parts, the auto maker voids the warranty. This allows many auto-makers to develop more sophisticated products, and market these products with some guarantee of profit. This profit allows these same corporations to do more Research and Development to create newer more sophisticated technologies–to everyone’s gain.

Coming back to Lexmark, I do feel that there should not be a lawsuit for the few bits on their handshake. My point is simply that in general, proprietary accessories should be legal. However, I agree with Alpert that Lexmark’s attempt was valiant and creative, and I agree with his market analysis, but I feel that he did not take into consideration the aforementioned positive externalities. I honestly feel that there can be read gains from proprietary accessories.

It seems to me that there is something truly important about the ability to purchase a different equally viable product. Since one always may choose not to buy a Lexmark printer, I feel that their actions are OK. To conclude, I would like to say that the on-box contract is fairly ridiculous, but in principle, Lexmark acted appropriately.

In the Sony v. Connectix case brings up the possibility of a normal PC playing Playstation games. Connectix developed software which allowed a standard CD-ROM reader to play offficial Playstation games. In theory this would reduce the demand for Playstation consoles, and move gaming almost exclusively to PCs. I feel that this is no longer pertinent given the next generation consoles, and the recent development of computer games.

Gaming today seems to be moving towards online interactions. XBox and Playstation both heavily advertise their connectivity, and online tournaments and challenges are being played more widely. This parallels the explosion of online gaming following the release of Half-Life and related Counter-Strike, which is the most played game in the world. Counter-Strike is an online game in which people from around the globe compete in real time through a pre-established network. Console games are attempting to replicate this trend by establishing their own networks.

Given this movement towards online gaming, there are serious advantages to the newest generation of console machines. XBox 2 and Playstation 3 are better alternatives to a traditional PC for certain types of games. First, they are much more affordable than a gaming PC, and have incredible video-processing power. The newest gaming engines, Half-Life 2 allow incredible detail, texture, and realistic gravitational interactions, which can be handled magnificently by the aforementioned consoles. With these consoles, you get top of the line video processing power, without the “excess” which come with a standard PC. The emulators would be less effective, since the console games will not run as well on the PCs as they will on the specifically designed consoles. Therefore, the consoles maintain a technological edge.

Finally, there is a difference in game-play. Mouse and keyboard games, such as Counter-Strike, have a very different feel than Bungie’s XBox Halo. While Halo PC came out, it is not nearly as popular as the XBox version, partially due to the appeal of the console gaming experience. There will always be demand for PC games and console games, and emulation does not serve such a large puzzle.

In the respondents brief one of the main points delivered is Argument subsection III.B—“The Overall Effects Of Peer-To-Peer File Sharing Are Still Uncertain” (42). Ironically, the argument does not address the validity of the infringement claim directly—instead it makes the point that it does no real harm. In what might be described as the main point of the brief, the respondents ignore whether or not substantive infringement occurred, or if there are substantial non-infringing uses, but instead discuss the potential harm of such infringement.

The argument starts with an ad hominem attack on the music industry, claiming that the petitioners’ plea is based on a “sky is falling” premise. The tone is clearly derogatory, and implies a juvenile misunderstanding of critical concepts (through Chicken Little). The respondents are not afraid to admit that there is illegal uses of p2p networks, but do not recognize every illegal transfer as a loss of money. While there should be loyalties associated with all such transactions, in reality consumers would never buy the vast majority of pirated songs.

Further, it is certainly unclear what the damages a liability expansion would cause to several major industries. The brief mentions consumer-electronics, computer, and telecommunications industries as ones likely to be harmed. To resolve the issue, the respondents seem to encourage technology-specific legal decisions to run through congressional channels, and prevent a potentially destructive precedent.

Then the respondents advise skepticism towards reports as to the damages incurred due to the current decision. They use further ad hominem attacks against MPAA President Jack Valenti for saying, “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” (42, J. Lardner, Fast Forward Hollywood, the Japanese, and the VCR Wars 279, Mentor ed. 1988). The immediate counter argument shows that more revenue is generated through movie rentals than the box-office. In other words, despite what the heads of the industry are saying, it is actually in their benefit to have the debated technology. They leave the reader to presume that there will be some equivalent technology which will increase revenues and parallel the VCR. The example given is iTunes, which increased ten-fold in use from 2003 to 2004. iTunes charges 99 cents per song, and despite the illegal music available, is experiencing record usage.

Finally, there is the point that even if the transfer is illegal, at least the music is being circulated and heard. Perhaps in the long run it is beneficial to have one’s music out on the market. My personal view goes something like this: while it would be annoying, if there were some way to monitor the songs people requested, one could informally rank the popularity of songs. This would give the radio stations a good barometer on new music, and would give great recognition to the band. The problem I see with the whole process is the free-music mindset. It is entirely feasible for me to get any song I want, for free, so why should I buy it? Once given the opportunity for unlimited free music, why give that up? Convenience and quality are not that much higher in iTunes, and since they are more expensive, it is hard to go against the pirated music. I feel that it is the music industry’s job to find some way to utilize this technology for its own gain. There must be some way to use p2p networking for a profit. Since most people have experienced the Napster, Morpheus, Aimster, etc. lifestyle, it is hard to make people go back to the way it was. Therefore, despite the shadiness of the argument, I like the respondents’ case. The lawsuits against individual offenders should act as a deterrent, and there must be a way to tap the power of this new technology.

The example given in class of Bank Software working perfectly 99% of the time, but allowing illegal money transfers during the other 1%. Since the dammages incurred during the 1% of infringing uses are so high, in the bank software case, 99% non-infringing is not enough. Similarly, if a network were set up that could compute cleansing drugs to aid chemotherapy and “cure” cancer, most would deem that 1% to be enough to qualify as substantial non-infringing use. it is pretty clear that the percentage of use is not enough to determine an appropriate amount of non-infringing use.

Some weighted average of importance of use times numberr of uses is necessary. This is partially solved by the law/economics model. If one looks at the law as a firm producing legislation, it is clear that there are many variables. First, one must consider the amount of infringing and non-infringing use. Then, one must determine the amount of gain/harm each use has, which is tremendously difficult. Without hindsight, it is almost impossible to determine the actual monetary impact each transaction (or even a sequence of transactions) has on the overall system. For example, every time “Pulp Fiction” is illegally copied, hoe much money is being pulled out of whose pockets. It is unclear who is actually losing the money, and also unclear the monetary amount of dammages are actually being incurred.

For this reason, courts are going to be very reluctant to write any opinion on the matter. It is up to each additional case to determine whether or not, in that specific instance, there is too much imbalance between infringing and non-infringing use. Finally, there is the looming 60% in Betamax, and 10% in Grokster. As Professor Felten said in class, 0% non-infringing use is too little, but apparently 60% is enough. However, there may be a case where 60% is too little non-infringing use given the dammage of the other 40%. Basically, I believe that any concrete opinions will be left out of court decisions for a long time.

As for my personal beliefs, i think it should really be a case by case basis weighing potential harms and gains.

In re Aimster Copyright Litigation comes down to an objection to impersonal file sharing. Since AOL Instant Messenger File Transfer is legal, AOL is not held liable for infringing practices such as sharing copyrighted songs, movies and source code. Therefore, industries know that buddies can form private chatrooms, sharing file lists (and files); in essence industries are allowing the free practices of AIMster amongst buddies (there are biggy back programs which allow one to encrypt AIM SecureIM). Given these practices, it is clear that the issue is the impersonal searching of potentially millions of users. Since the number of AIMster users is functionally infinite, it is easy to obtain any album, movie, or source code.

This is problematic for the copyright holders, and is the core of their objection. Corporations are aware that illegal file sharing practices occur, and are trying to limit the broad scale sharing possible through seach-based sharing networks such as AIMster. The ability to designate a folder availible for sharing, and to visually search for desired files is potentially very harmful to the industry, which is why “minor” infractions amongst friends are ignored, while large scale infringing networks are targeted.

While imperosnal sharing networks with seach capability are the core of the AIMster decision, there are many other interesting features to the decision. One refutes AIMster’s claim that their actions do not harm the industries involved. The analogy drawn in the AIMster case is to a trespasser, who while not causing any harm, is still acting illegally. The question I would like to pose is why? Is it enough to show that no harm is caused to the music and movie industries by AIMster’s actions? No doubt in civil court, for compensatory reasons this question is pertinent, but should it always matter? My personal opinion is that if AIMster could definitively show that it was causing no harm (and possibly gain) from their actions, it could be deemed legal. I would put the burden of proof upon AIMster to show its effect on the related industries.

Second, is the reutation of the Napster precedent which stated that “actual knowledge of specific infringing uses is a sufficient condition for deeming a facilitator a contributory infringer.” It is clear that simply because there will be some infringing uses of a product or service, does not imply that the product is not still good. In the Betamax case, simply because some people would engage in library creating and commercial skipping, does not mean that the whole product is void. This also holds true to services, where simply because there is some infringing use, does not mean that the product is bad. There are plentry of services which aid infringing behavior, but overall benefit non-infringing users, and are mostly used in non-infringing ways.

An important aspect of the Betamax case revolves around potential responsibility of corporations for developing new technologies, and the possibility of stagnating technological development. In our capitalistic society, corporations analyze future expectations of new inventions. It is vital that the Betamax decision be upheld, else the Nash equilibria of the game theoretic model for technological breakthroughs might move towards a lack of development. Corporations need freedom to develop new technologies.

Similarly, for the safety of consumers, it is imperative that some restrictions be placed upon producers. There is a fine balance between protecting firms by not imposing excessive sanctions, and protecting consumers by forcing an amount of producer accountability. The Supreme Court decided that an appropriate test to determine secondary liability is to analyze the potential for and probability of lawful (non-infringing) use. I feel that this test is good, and can only be modified slightly.

First, consider the ramifications of the alternate verdict—that companies can be held secondarily liable for their products. This precedent is especially dangerous given its concurrence with the Macintosh computer, which has vast potential for illegal activity. This might lead to a scary slippery slope. Apple would probably go out of business, preventing the development of the personal computer in the United States. Perhaps the precedent would be used to ban typewriters for their aid to fraud, automobiles for robbery, etc. Clearly this is absurd, but it shows the danger of having such a decision on the books; it is unclear where one draws the line if the Supreme Court rules against Sony in this case, and it is almost impossible to draft meaningful legislation.

Second, consider a more lenient test. If corporations only had to show the possibility of non-infringing use, consumer abuse might ensue. There is the case of Keith’s torture device which can also cook a turkey, and Aimster, which only advertised its product depicting illegal use. Conversely, a more stringent test would again impose too many restrictions on producers. Alex’s suggested fix, that technology must not have the capacity for great infringing use, seems imprudent since creative criminals can find innovative uses for harmless technologies (GPS for coordinating attacks). Such constraints would limit firms’ ability to develop new technology, which would again lead to stagnation.

My only proposed improvement would be to add a good faith effort to examine potential illegal uses for a product. Creating a list of possible infringing uses would allow lawmakers the ability to produce and enforce legislation limiting infringing behavior; there could still be technological advance, in addition to restrictions upon illegal use. This compromise seems ideal—allowing profit, technological development, and limiting infringement.