Module 10: Ethics & Copyright

(Copyright Scenarios)

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Scenario # 1: Compiled Software Code

Intro

A computer science instructor has used a decompiler to reverse engineer a proprietary application which has been compiled. Unlike interpreted software code, this code is not accessible and not provided by the vendor (as in open source code). The instructor wants to demonstrate secure application programming techniques to his students, but experience has shown that unless he first shows them the vulnerability created by insecure programming techniques, they will not be as motivated or engaged and will not understand the importance of the concepts under study. The instructor takes a generic off-the-shelf program and hacks it, but does not reveal the program name. Only the relevant code in the immediate area where the serial number is used to enable functionality is posted on the password protected website. Since students do not know what the program under study actually is, they would have to guess at it, or perform this reverse engineering themselves on thousands of programs in order to find out. In the instructor's mind, there is no risk that this vulnerability will be taken advantage of, or that some student would use this particular hack, in order to illegally begin using the program without buying the license.

Purpose

The purpose of copying the source code to the website is educational (criticism and research with restricted access), which weighs in favor of fair use.

Nature

The nature of this work being used is factual and important to the educational objectives, which weighs in favor of fair use. However, because the source code is intended to be restricted access to the original programmers for applications which have been compiled, and only the compiled executables or binaries are published, the source code itself is unpublished and represents intellectual property protected against misuse. This last aspect weighs against fair use.

Amount

Although the quantity used is small, which weighs in favor of fair use, the portion being used is central to the work, in the respect of enabling all the functionality of it (when the serial key is input by a consumer), and this weighs against fair use.

Effect

Because there is a mechanism provided by the vendor of the software for the use and licensing of the copyrighted work, this weighs against fair use. If by some means a student was able to figure out what application this was (by doing internet searches of hacking sites) and then they distributed this vulnerability to others, then this program could wind up comprised and a market impact would be felt.

Alternative

As an alternative, the instructor could have students design their own application, with the challenge that he claims to be able to hack it. He could then demonstrate to the students the process, using their own class material.

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Scenario # 2: Linguistic Sequence

Intro

A philosophy instructor has devised a system of linguistic sequences which reveals the underlying cognitive structures of speakers, given highly constrained circumstances in an experimental laboratory setting. Prior to his publishing this experimental method, another instructor in a different department (the EDIT program) accidentally comes across this material, and decides to include it in their own article, which they are preparing for publication immediately. The philosophy professor does not anticipate having the opportunity to publish their work, for another year at the earliest, because of the differences in the publication journal practices in their field, and due to the need for more experimental trials before conclusions can be drawn.

Purpose

The purpose of copying the linguistic sequence into the EDIT publication article is research and scholarship, which weighs in favor of fair use.

Nature

Because this is an unpublished work it weighs against fair use. However, the work is fact based, and a reference citation to the original author is being made by the EDIT professor. The problem is that the philosophy professor is angry and does not want this amazing discovery to be revealed to the wider public yet.

Amount

Although this quantity of information in absolute terms is small it represents 100% of the core constructs and sequence. This overall weighs against this usage being weighed as fair.

Effect

The effect on the original philosophy faculty researcher could be subtle and not immediate, and yet, there could be a very large opportunity cost to the author, in lost recognition, initial impact of the ideas, and career opportunities. The impact to the University will likely include the public image of internal conflict and scandal, especially if the original author attempts to bring a lawsuit against the offending EDIT faculty member.

Alternative

A good alternative would be for the EDIT faculty researcher to attempt to negotiate with the original author to attempt to find a way to publish just a preview without revealing any critical parts of the sequence. If the philosophy researcher is still discontent and not negotiable, it would be best to wait for the publication of the original sequence by the original author, or else to merely mention the discovery very briefly in their article.

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Scenario # 3: Fossil Record

Intro

An affiliated museum's director of archeology has an ongoing agreement between their institutions that authorizes sharing of a number of exhibit materials at regular intervals, which includes specifications of what types of artifacts, how often, how long the visiting materials will be held, and which specifies the legal liability and insurance limits for accountable and responsible parties.

The curator, upset that they were not able to complete all events on the agenda before the return of a particular set of fossil records to the home museum, has taken it upon himself to use their new rapid prototyping server cluster and multidimensional laser scanner to input the 3 dimensional holograph to their database system and maintain and ongoing permanent display which faithfully represents the fossils in both shape and size in their holograph room.

Purpose

The purpose of copying the image, size, and shape exactly as the original, is for teaching and non-profit educational institution, which weighs in favor of fair use. However, it could be argued that this is also for entertainment which weight against this use being fair.

Nature

These fossil records are factual and well-known which weighs in favor of fair use, however, their image and exact dimensions are not publishable and therefore the nature of this usage could also weigh against fair use.

Amount

The quantity of usage and quality of representation is nearly identical and a complete representation of the whole and therefore this will weight against this usage being fair.

Effect

Because the home museum has possibly paid a very large sum for the artifact, and may also be paying high fees for insurance and maintenance, the impact to their exclusive permanent exhibition of these fossils is critical. They also receive fees from neighbor universities and museums who are not part of the sharing contract, when they require usage. This could represent a loss to their value to the home organization.

Alternative

The information being stored in the database servers housing the holographic image and 3D data should be removed from general storage, and burned onto DVD's or an external portable HDD and sent insured to the home institution until a fair use agreement can be negotiated, or an amendment made to the original sharing contract.

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Scenario # 4: Sculpture Tool

Intro

A world renowned American sculptural artist has been overseas enjoying their success, traveling in exotic cultures and learning about the local sculpting techniques of the natives. One day, the famous artist files a patent in the US Patent office for a radical new tool, which creates cuts and shapes that are very difficult to replicate by any other tool he has ever used.

The famous artist gives regular seminars on the craft and begins to demonstrate their new tool to students who attend, and announced their own self as the originator of this radical new technique. One day, a person overseas reading about this artist, their patented tool, and their radical new techniques realizes that this is a shameless rip-off of centuries old techniques and tools used by the shamans in very rural areas of their own homeland. They attempt to contact the artist, but none of their phone calls or emails are returned. One day they get a letter of denial about their allegations from an attorney who says that they represent the artist legally, and requests that all future inquiries be directed to them.

Purpose

The purpose of copying the tools and techniques of the shamans for classroom use is educational, which weighs in favor of fair use. However, clearly this artist is benefiting from the tools and techniques commercially, and this weighs against fair use.

Nature

The shape, usage, and techniques associated with these new sculpting tools represent an unpublished set of concepts. However, they cannot represent intellectual property, as they have been in the public domain for so long. This weighs in favor of fair use.

Amount

Both the quality and quantity are identical in representation, a complete portion of the work, and central to their utility ("the heart of the work"), however, in this case, this does not rule against fair use, because this represents work in the public domain, and is a matter of retraction that must occur within the patent office. Any civil action by students of the artist must instead focus on the misrepresentation by the artist of their original source, and damages or returned fees possibly paid for others who leased the technology from the defendant.

Effect

The effect in this case, is that the students themselves have been cheated, and thus a market was created where one should not have existed. Although different areas may have different legal definitions for the commercial educational use of technology, in this case, it does not appear that the artist was being fair the culture and originators of this technology, even if they were using it fairly and for educational purposes.

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Scenario # 5: Musical Rendition

Intro

An instructor in a distance education research course for EDIT students, uses music as a background auditory supplement when creating animated tutorials for various tasks, such as how to use the WebCT submission tool, for students who are computer novices but have been admitted recently to the doctoral program in instructional technology. The instructor does not now, nor does she have any intention in the future, of using these tutorials for commercial or other profit motives.

Purpose

The purpose of copying the news articles for classroom use is educational, which weighs in favor of fair use.

Nature

The nature of the work is published, so this also favors fair use. However, this work is high creative and artistic music, which does not favor fair use.

Amount

The amount of the work used, is that it is the entire work which does not favor fair use.

Effect

Because this is a musical collection of works which is copyrighted and published and sold by a vendor, and because the instructor is creating tutorials which are intended to be used permanently or repeatedly for an extended period of time, the impact to the market value and cost to the vendor who sells it is significant. This may outweigh some of the other factors which are in support of this usage being fair.

Alternative

A good alternative would be for the instructor of the course to contact the vendor or the artist themselves if the artist has rights to the music, and attempt to get their permission to use the material in the manner they are. Another option would be to buy the collections of music which are available for sale on the internet and which are designed to be used ROYALTY FREE for just such purposes, either commercial or otherwise.

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Scenario # 6: Chocolate Flavor

Intro

A research class in Distance Education is attempting to develop curricular content for knowledge domains typically underrepresented in online environments. Because media does not affect learning, they have decided to put this to the test, and attempt to design haptics e-learning for an expensive series of courses taught by a world famous culinary school in Paris, France. The haptics techniques involve remote sensation of smells, along with software designed to allow students to use virtual "chemical" manipulations which alter the cooking processes and the combined ingredients for impact on bitterness, sourness, sweetness, or saltiness. Because olfaction is not limited to these five distinct qualities of flavor, the goal of the instruction is to demonstrate the relationship between olfaction, taste and trigeminal receptors, in the succulent dance of the culinary arts.

But there is a very serious problem. The more distinguished master chefs are worried that a student will find a way to intercept the data stream from the chemo-receptor equipment before transmission to their headset, and thereby record not only the final product of their undisputed talent, but in some way transgress their uniquely individual personal style of preparation, thus robbing them of what makes their works exclusive (albeit perishable) masterpieces and individually extraordinary. The controversy begins when one student in the class remarks that if such a recording could be made, that it would be highly marketable over the internet, as a mood enhancing product.

Purpose

The purpose of copying the olfactory signatures of the master culinary products for training is educational, which weighs in favor of fair use.

Nature

The unique signature of certain olfactory perceptions when produced by the culinary work of gifted artists can be interpreted as a “consumable” material because (1) is has the ability to be "mentally absorbed", (2) it is a material that must be continuously replenished (it gets used up when not recorded digitally). On the other hand, once it has been accurately recorded digitally, it will not necessarily be any longer expended by a first use, in the same way that paint, fuel, cleaning materials, and the like are. There may not be a legal precedent for sense perceptions which are digitally recorded. However, it would also stand to reason that when the material is of great value only when attached to another sense perception such as taste (normally olfaction occurs in conjunction with taste) then that material is in fact a consumable.

Amount

Both the quality and the amount of the original data is being recorded in full. This weighs against this being a fair use.

Effect

It is wise of the great masters to be somewhat nervous about the possibility for misuse of their personal creations. Part of the market demand for their services is that each and every creation is NORMALLY a perishable items which is consumed and must then be replaced, and this creates a constant demand for their services.

There are two ways that this could go for the Master Chef plaintiffs. If they were to copyright the olfactory signatures of their works, then they could receive royalties and other residual revenues on an ongoing basis, and thus benefit from the recording of their olfactory signatures permanently. On the other hand, it could prove difficult to control unregulated copy and distribution of these signatures, in the same way that the music and movie industry have attempted to work with hardware vendors of DVD and other devices which prevent unauthorized replication.

Alternative

The Instructional Designers should either contract with a software security consultant to provide for extensive duplication barriers and security measures or extricate themselves from any liability for the transmission of this data. Alternatively, they could get the client culinary school and master chefs to sign a waiver authorizing them to develop the content for the students, and build into the course curriculum explicit statements informing students of the civil and legal penalties for violation of copyright law.

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