Outline

I. Legal Issues

Brief overview of legal issues
Definition of intellectual property.
Outline of legal development and current status of copyright laws. (Will
Evolving copyright issues relating to the Internet.
Survey of computer crimes relating to intellectual property.
Privacy issues and web management

II. Ethical Issues

Definition of ethics
Ethical aspects of web management (privacy, mass emails, hacking,
Computer ethics resources on the web.
Ethics case studies (public access web sites which use case studies to illustrate

Each of the two sections will be followed by a set of self assessment questions

A related to the Internet. include discussion of licenses, fair use, plagiarism, etc.) and ethical responsibility. etc.) ethical problems relating to the web will be linked to enable students to use the cases for study.) for which answers or possible approaches to solutions will be available. Each topic will also, when relevant, be linked to appropriate sites on the web.
Legal and Ethical Aspects of the Internet

Introduction: The Internet allows consumers, businesses, and industry to do many new things in unique and efficient ways. The technology around which it is built is also changing and advancing rapidly. A source of concern is that the legal and ethical developments regarding the Internet are not able to keep up with the fast pace of technological change. This tutorial touches on the main areas of legal and ethical concern that have emerged so far, the ways in which they are being dealt with, and the implications for providers of technology related services and products. These major areas are:
legal and ethical problems that arise in terms of the Internet and electronic media deal with intellectual property issues. There are well developed laws that govern physical property. Physical property, also known as tangible property, is property that we can touch and feel. Intellectual property, on the other hand, deals with the ownership of ideas or the expression of ideas. Since ideas cannot be touched or felt, but they do belong to the person who developed (or authored) them, they are known as intangible property.
These are:
an idea is to ensure that the idea is kept a secret. An example is the formula used in preparing Coca Cola syrup. Very few employees know the formula, and those who do are required to sign nondisclosure agreements in order to have access to it. The formula is safe as long as no employee divulges the secret. The company could take them to court if they did so. Another example of a trade secret may be a company’s business plan or strategy.
This may not be possible in the world of computer technology and programming.
idea that is fixed in any physical medium, such as paper, electronic tapes, floppy discs, CD ROMs, etc. It is important to note that the "right" or protection is given to how the idea is expressed, not to the idea itself.
by the Backstreet Boys, both of which deal with the idea of love, but express the idea in different ways. Each can copyright the way they express their idea of love in their songs. They cannot copyright the idea of love itself.
can be protected by copyright. In addition to the actual code of a program, copyright can extend to the screen layout and graphics of the program. Copyright extends to both published and unpublished material.
of the work, the statement "Copyright" followed by the symbol ã , together with the year and the author’s name, or the name of the company owning the copyright, followed by the statement "All Rights Reserved". An example of a copyright statement is:
Rights Reserved.
Symbol;">ã 1990, John W. Smith", but the statement shown above meets international requirements. Recent legal judgments indicate that copyright to a work produced after January 1, 1978, may exist even if the copyright statement is not displayed on the work. But it strengthens an author's hand to have the statement displayed.
is fixed in some medium. For example, a software program that has been developed on a monitor becomes copyrightable from the moment it becomes saved to a disk or hard drive since it then becomes fixed in a medium.
on the chip, and sometimes a notice may be embedded inside the chip in ASCII code (deForest, 1988).
No further filing of the notice is required. However, it is also possible, and advisable, to register the copyright with the Library of Congress Copyright Office. Registration substantially increases the penalty (referred to sometimes as "damages") that anyone found guilty of violating the copyright (often called "copyright piracy" or "infringement") will have to pay. In addition, if someone violates a copyright, they cannot be sued until the copyright is registered.
the copyright, to others, usually for a fee or payments known as royalties. It is illegal to use copyrighted material without a license or payment of royalties. However, one major exception to this statement is the "Fair Use" rule.
or payment of royalty to the owner, if the purpose of the use is criticism, news reporting, scholarship, research, or teaching (including multiple copies for classroom use). This does not mean unrestricted use, however. Fair use is determined by several factors:
educational purposes proportion is reproduced, it is unlikely to be considered fair use. (e.g. If one article out of a book with fifteen articles in it, is copied and used in a class it is likely to be fair use. However, copying eight to ten articles may not be considered fair use). work (i.e. Is the owner going to be financially hurt by this use?). This point is an important one in determining fair use. for individuals to reproduce or distribute copies of copyrighted works. In order to provide for fair use, the Act allows copies to be made "if copying does not hurt the interests of the author." Under this guideline, if a copyrighted work were to be put on the Internet as part of a distance education program, it is not likely to be considered to be fair use since the work could be accessed by anyone on the Internet and this is likely to hurt the author’s interests by bringing down its market value. On the other hand, it is more likely to be considered fair use if access to the work on the web was restricted to those enrolled in the distance learning program, perhaps by using a password.
legally make a copy of the program if
a program from a CD to the hard drive of a computer.), and that it is not used in any other way. to the original copy cease to exist into the usual category of copyrighted material are shareware and freeware. Both categories of programs may be copied without permission. However, the expectation regarding shareware is that the person making the copy will test the program and, if it is found to be useful, will make a payment to the author. The process is based on an honor system so that non-payment is likely to be more of an ethical rather than a legal problem. Freeware is available for copying and using without any payment. Some ideas and expressions of ideas, such as freeware, are said to be in the public domain because they are owned by the public and can be freely copied and used by them, with appropriate reference to the source. Government publications are also in the public domain. All intellectual property becomes part of the public domain once the intellectual property right expires.
considered the author and given copyright ownership. Work is considered to have been done " for hire " if
or between the parties involved, clearly stating that the work involved shall be considered a work for hire. it is fixed in some medium. This protection exists, in such cases, for:
death. one author, and the work was not done for hire. or 120 years from its creation, whichever is shorter. for 28 years, and could be extended by renewal for a maximum of 95 years.
to the owners heir(s).
registered with the Copyright Office but there are some legal advantages to doing so.
(Bitlaw, 2000). They also sometimes store data for their customers’ use, as in the case of a Usenet newsgroup server or a world wide web server. As a general rule, as long as the ISP is not aware of any illegal activity carried out by its users, the provider cannot be held liable. However, if the provider does become aware of any illegal activity, or ought to have become aware of such activity if it had exercised the normal degree of oversight in such circumstances, then the courts are likely to hold the provider liable for the customers activity. This rule also applies to service providers who do not connect directly to the Internet, such as bulletin board operators and proprietary information providers.
a copyrighted work, it can still be liable for copyright infringement under the concept of " contributory infringement ". This concept applies when "a party causes or contributes to the infringing conduct of another with knowledge of the other party’s infringing activities."
were illegally downloading and uploading copyrighted games and allowed, and even encouraged them to continue to do so. The operator was not found to be guilty of direct copyright infringement, but he was found guilty of contributory infringement.
a person may be liable for the infringing actions of another person, if the person has the right and ability to control the infringer’s acts and receives a direct financial benefit from the infringement. Vicarious liability can exist even if the defendant had no knowledge of the infringer’s activity.
most attempts to get around anticopying technology. Only when it is necessary to make software or hardware compatible with other products, to conduct encryption research, or to prevent cookies from spreading personal information is it legal to bypass anticopying technology. This act also legislates against excessive copying of databases, even when the databases contain information already existing in the public domain (Turban, et al. p. 355).
access providers must act responsibly and make efforts to police piracy; not necessarily because of threats of legislation but because it is in their best long-term interests to do so." (Turban et al., 2000; p.355)
on the Internet. An example of a domain name is www.nbc.com. The name is segmented into several levels. In the example given, the top level domain (com) is on the right, the designation of the specific computer is indicated on the left (www), and the subdomain (nbc) is indicated between these two. (Turban et al. 2000, p.506). Domain names can be selected by the person seeking an address, and need to be registered with the appropriate registering body.
similar to those of brick-and-mortar companies or copyrighted names or materials, in order to attract web traffic to their site. Some individuals have also registered large numbers of such names, not for their use, but with the intention of selling these names to the highest bidder. As a result, sometimes a company with a well known brand name has applied to establish a web address and found that the name has already been registered by someone else who now asks for substantial payment for purchase of the domain name.
bases such claims on its existing copyright or trademark rights. Such claims are usually valid if the party can show that the defendants use of the copyrighted mark is creating confusion in the minds of the public, or that it will dilute the impact of a famous brand name. For example, if domain names were different versions of Coca Cola, such as Koka Kola, Kola Koke, etc, Coca Cola could claim that such use was creating confusion in people’s minds about the producer of the product bearing such names, and would also "dilute" or diminish the value of the Coca Cola brand name.
(Greenstein, 2000):
domain name OR the effective date of a validating trademark registration; and effective date of the claimant’s validated registration. Trademark rights do not stop others from copying a product, but they do prevent them from calling or labeling their product by a name or phrase that is confusingly similar to the trademark.
a product that is then sold. Trademark protection is available for a mark or phrase that is not already in use by someone else. In addition, it must (1) not be just geographically descriptive (e.g. Chicago Retail Store), (2) not be just descriptive of the type of goods (e.g. The Soft Drink Store), (3) not be just a surname (e.g. Smith Enterprises), and (4) not be likely to deceive others. Trademarks can be registered with the U.S. Patent Office and this provides some legal benefits.
others in terms of the product or the company cannot be protected by trademark. This "likelihood of confusion" is an important factor in determining trademark infringement.
exists are (Bitlaw, 2000):
each mark’s look, phonetic (sound) similarities, and underlying meanings); of the marketing channels for the goods); to confuse customers into thinking his brand was the same as the complainant’s?) and if a consumer is likely to buy items at the checkout counter on impulse, without much thought or examination of the product, then a similar-sounding name might mislead the consumer into buying an unintended product). an especially easy one for trademark infringement. Some situations could arise where a site, pretending to represent a particular trademark, participates in an "unsavory" attack, and by doing so damages the rightful trademark holders reputation. For example, a company, using a mark similar to another’s logo sends unsolicited email (spamming). Such an act would be trademark infringement.
grant an injunction against further infringement (i.e. an order stop infringing). If the trademark was federally registered, attorney fees may also have to be paid by the infringer.
minds regarding their product or company, because their logo, domain name or anything else in their literature or website is similar to that of another company. They can, however, have logos of other companies on their website if permission is given for doing so.
of someone else, especially if the ISP knows, or should have known in the course of regular oversight, that such infringement was occurring. The ISP may be liable for contributory trademark infringement where it knowingly causes or contributes to the infringing conduct of another. For example, if an ISP is informed by someone that one of its customers is misusing a trademark and provides details, but the ISP does nothing about it, for fear of losing the customer, it may be liable for contributory trademark infringement.
One example is the use of keyword meta tags. Search engines on the web look for sites by looking for HTML meta tags that are labeled as keywords. Programmers have deliberately used well known trademarked words as meta tags in their web sites in order to draw viewers to their site. For example, some web sites have used "Playboy" as a meta tag. Such use is likely to be viewed as an infringement of a trademark.
(Greenstein, 2000, p. 80):
(similar to plagiarism); has advertising frames, without displaying the site’s advertisements along with the retrieved document. and video available on the web. However, since many of the sites in the database had bootlegged copies, Lycos was taken to court for providing links to these sites. The case has not yet been resolved. below: rue&">http://law.about.com/newsissues/law/library/weekly/aa022399.htm?once=true&
Sidewalk Web service, providing local event information to Seattleites, with plans to build similar sites for a variety of other cities. Negotiations with Ticketmaster to jointly provide content and ticket sales failed, but Microsoft set up its event pages with links directly toTicketmaster's specific event ticket sales pages.
and advertising, but Microsoft persisted. In fact, according to a CNET report at the time, Ticketmaster set up technological blocks to prevent Microsoft and other sites from accessing ticket sales pages directly in that way, but Microsoft built a work-around and continued the practice anyway. So Ticketmaster sued.
permission from a site before linking to it especially if it is going to be a major link that will draw viewers to your website. In addition, the cases that have arisen to date suggest that difficulties with hyperlinks arise when the links bypass some major content of the site being linked to (for example, pages that contained important information regarding the company linked to, and its advertising) so that some of the effectiveness of that site is diminished. Linking to a webpage by avoiding some of the earlier pages on the site is sometimes referred to as "deep linking".
composition of matter, or method, or for an improvement on an existing one of any of these. The right of ownership is given for 17 years. In order to get this right, the applicant must state the details of the idea clearly in writing and submit it to the U.S. Patent and Trademark Office for their assessment of its uniqueness. Patents can be licensed or sold to others.
if someone writes a computer program that does something new, it can be copyrighted. If the program also meets the criteria for a patent because it deals with a new method, then it may be patentable too.
ISPs provide services to their customers, they do so based on the contract that has been agreed upon between them. If the ISP does not supply the services it specified in the contract, it may become liable for breach of contract or fraud. An example is when America Online moved to a flat rate policy, the number of its customers increased enormously. As a result, its services were slowed and many customers had to wait for long periods of time to get online because of busy signals. Customers took AOL to court saying that the company knew that its flat rate plan would give rise to these problems but went ahead with it. In addition, the complainants said that by misleading current and prospective customers about the quality of services, AOL had committed fraud.
is a broad term covering slander and libel. Slander is a false statement made to injure the reputation of a person. Libel is a similar statement that is published i.e. is stated in some fixed medium, such as in writing. The Internet, because of the freedoms it provides, is a potential source of defamatory issues that could involve ISP liability. Two examples of such issues, taken from Bitlaw (2000) are given below.
of its customers in one of its discussion rooms (or bulletin boards). The judge had to determine whether Prodigy was only a distributor of the information (in which case it would not be liable for defamation by a customer), or whether it was a publisher of the information (in which case it would be guilty of defamation since, as publisher, it has control over content). The judge found Prodigy guilty of defamation on the grounds that Prodigy had well publicized policies for monitoring and censoring content in its discussion rooms, and so behaved like a publisher.
that the company was not guilty of defamation because it did not exercise any control over discussion room content and so acted merely as a distributor rather than a publisher.
rather than publishers. Therefore, ISPs cannot be held liable for libelous statements made by their customers even if the ISP is made aware of the posting.
to unusual twists. In the UK, ISPs, even though they are distributors of information, must prove innocent distribution, i.e. that they had no knowledge of the defamatory statement on their site. This differing view has given rise to a unique legal situation involving ISPs as described below (Greenstein, 2000, p. 92):
on a website. five defamatory statements about the professor to a Usenet group using Cornell’s computer system. and Cornell University stating that the statements damaged his professional reputation because they were read by individuals in the U.K. international jurisdictions are involved in Internet related cases. In the U.S. Cornell University may not be considered liable because it is a distributor and because of First Amendment protections of freedom of speech and expression. In the U.K., the university’s position is less clear since the professor claims that the University allowed the statements to stay on the site even after it was informed of the defamatory statements by the professor. The case also raises questions about legal jurisdiction. If the U.K. court finds Cornell University to be guilty of defamation, it may not be able to enforce its laws in the U.S. The outcome of the case is being watched keenly across the world because of its important implications for the Internet and ISPs.
and government have always collected information regarding individuals, households, the economy, etc. through surveys, interviews, etc. In general, the individual about whom information was being collected knew that this was being done. However, with the Internet and telecommunications, technology currently available makes it possible to record and/or trace every "click" or interaction by a user browsing the web, without their knowledge. This has raised issues about the individual’s right to keep his or her personal and businesses activities and information confidential. The Federal Trade Commission (FTC) has outlined several factors that should govern the collection or use of information. These are given below (largely quoted from Greenstein, 2000; p. 73):
practices before personal information is gathered. any secondary uses (uses other than the processing of a transaction) of information. Secondary uses include notices or transfer of data to third parties. Thus, this would mean that the firm involved in the transaction would not send them emails about other products or sell or make available their address or information to any other company without their consent. review it without significant delays. They should also be able to easily and quickly correct inaccurate personal information. should be processed in such a way that the information is accurate. The data should also be kept confidential as it is processed, transmitted and stored. This makes it necessary for ISPs and e-commerce units to provide secure transactions and storage of data. situation if any of the above features is violated. laid down by the FTC. The U.S. government has given private industries the opportunity to develop their own guidelines regarding the privacy rights of adults. However, a recent report by the FTC indicated that private industries have, in general, failed to develop their own standards regarding privacy. They found that 85 percent of 1,402 sites surveyed collected personal information but did not have any information about privacy policies.
of 212 such sites surveyed collected personal information from children. This included e-mail addresses, postal addresses, telephone numbers, social security numbers, date of birth, gender, education, interests, hobbies, etc. The government is actively seeking to end such practices and to protect children from such activities.
regarding privacy protection of adults on the Internet, an Online Privacy Alliance has been formed, with 43 well known global firms such as AT&T, Disney, Microsoft, etc. and 14 associations. This alliance certifies that an Internet firm meets the information privacy guidelines for adults by giving the firm a "privacy seal" that is displayed on the firms website. Customers could then be sure that the firm adheres to the privacy guidelines set down by the FTC. It is in the interest of every website to have this seal.
but in some aspects stricter than, the FTC’s guidelines. Any firms, including ISPs, that want to do business with Europe would have to meet these criteria. The guidelines set down by the Online Privacy Alliance are very similar to the European Union directives.
practices of a very popular site on the web: GeoCities. GeoCities which, according to one survey is the third most popular site accessed from consumers homes, was charged with misrepresenting the purposes for which it collected personal information from both children and adults. GeoCities was found to be in violation of the privacy criteria laid down by the FTC that were described above. They settled with the government and agreed to post clear and unambiguous privacy statements on the website. In addition, the company must obtain parental consent before it collects personal information from children 12 years or younger. This is in line with current industry self-regulatory guidelines. GeoCities is also required to provide a link on its site to the FTC site that contains educational material on consumer privacy (www.ftc.gov ).
Internet has become the "great equalizer" in terms of allowing individuals, regardless of background, location, income, etc. to access and provide information and to make their views known. However, this has proved to be a mixed blessing. The Internet has been used to propagate material that may be found offensive by many, such as pornographic, hate and other potentially dangerous material. Since such sites may be accessed by children, there is a general agreement by the public that there should be some means to prevent this from happening.
systems that are "family friendly" and allow parental control over sites viewed by children. America Online, in trying to develop a safe and family friendly service, encourages members to self police the system and bring to their attention content that violates the service conditions. AOL’s policy prohibits hate speech or truly offensive speech. The policy has been applied to a KKK site and to a serial killer website. Recently, eBay and other auction sites shut down their gun auction sites. Some members of the public would like to see ISPs held legally liable for the material on their sites.
newsgroups because they violated German law. Since the company could not selectively restrict access in Germany, it had to restrict access worldwide. Germany has since changed its laws so that ISPs are not liable for content. But it does show that it pays for providers to be proactive and anticipate potential problems and address them before they occur.
on its auction site and chat rooms where pro Nazi comments were made. Yahoo has announced that it will be stopping the auctions but it has not closed down the chat rooms, citing freedom of speech. The case has not been resolved but it illustrates the sort of problems that can arise in this new medium.
children on the web (Turban et al., 2000; p. 359). The following brief descriptions give some idea of the concerns of the public and the possible areas regarding which ISPs need to be concerned.
an adult’s age before they have access to material online that is considered "harmful to minors". It also requires parental consent before soliciting personal information from a minor. software at the time of signing up that would allow members to filter web content that children have access to. but also prohibits ISPs from providing accounts to sexually violent predators. as a tool for encouraging them to install filtering software. related sites and make filtering easier.
involves sending e-mail messages indiscriminately and without the permission of the receiver and disregarding the appropriateness of the message. It is the equivalent of "junk mail" sent through regular postal services. Spamming is widespread and affects the speed of the Internet, sometimes bring it down completely. The Electronic Mailbox Protection Act is trying to control spamming. This act requires senders of spam to identify it as advertising, to indicate the name of the sender, and to include valid routing information. In addition, ISPs would be required to offer spam blocking software and recipients would have the right to request that all future spam be stopped.
with the standards of human conduct that direct the behavior of individuals and groups (Bottorff, 2000). These standards, in turn, are developed by the society within which the individual or group exists.
complex range of societies and backgrounds, the ethical standards of the participants can vary widely. However, in order for the citizens of the Internet community to be able to interact productively through communications, economics transactions and shared information, it is necessary for the community to develop a common set of ethics or standards of human conduct that governs their behavior. This is especially necessary since those who are interacting are doing so in a virtual community where they cannot see or meet each other physically. Without a common ethical framework, no trust can develop between those interacting, and the Internet will then fail as a medium for interaction.
for the Internet. One examples of such a guideline on the web is given below and is taken from the Internet Advertising Bureau website:
Science Foundation Division of Network, Communications Research and Infrastructure which, in paraphrase, characterized as unethical and unacceptable any activity which purposely:
of the Internet,
they address many of the areas that involve legal implications as well as ethical ones. It is often true that what is illegal is also unethical. However, the opposite is not always true: what is unethical may not always be illegal. For example, it may be considered unethical to sell information regarding your customers to another agency but it may not necessarily be illegal.
as: Is it what is best for all concerned and not just for myself? Would I want someone else to do the same thing to me?
and is much more a personal decision. This is all the more reason for technology professionals in the computer industry to set high ethical standards and to act in a way that its actions and the basis for them are clear to all concerned. One approach to accomplishing this is to have a clearly stated set of guidelines for the organization that addresses general issues, as well as specific issues prone to ethical problems, and make sure that both employees and customers are familiar with.
, 2001
Business Ethics 00/01, McGraw Hill, 2000, p.11-15.
TAB Books, 1988.
and Control, McGraw Hill, 2000
Perspective, Prentice Hall, 2000.
This web page provides some interesting and educational case situations that are very useful for all TekXam students to read and attempt to find solutions for, using the knowledge gained from the TekXam legal/ethics tutorial.
cs.ubc.ca/resources/computer/pubs.html This is a leading site on the web dealing with computer ethics, maintained by the University of British Columbia.
ations/MR/R3283/ Article suggesting ethical guidelines governing email.
as the "Copyright Website" and has resources and links related to copyright issues and the computer.
ectronic/">http://courses.ncsu.edu:8020/classes-a/computer_ethics/intellectual/electronic/ Site provides numerous links to fair use and copyright related sites on the web.
ml">http://www.bizjournals.com/baltimore/stories/1997/09/01/newscolumn2.html Article dealing with a case involving web linking.
aw/ip-primer A web site functioning as an intellectual property law primer for multimedia and web developers.
red.com/news/politics/0,1283,20948,00.html Important article illustrating the problems that can arise with linking to other sites.
website describing cookies and providing links to problems associated with cookies
http://courses.ncsu.edu:8020/classes-a/computer_ethics/privacy/spam/ A web page providing links to several important articles and sites dealing with problems and cases related to spamming.
http://www.cc.iastate.edu/olc_answers/information/policy/ethics.html This site from Iowa State University provides the ethical guidelines developed, by EDUCOM, for computer professionals and users at educational institutions, and can be a useful set of guidelines for all computer professionals to follow.

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Monday, September 14, 2009

SF- Study Guide: Legal and Ethical

Outline

I. Legal Issues

II. Ethical Issues

1. Protection of Intellectual Property

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