What Would You Do

ethics

Many sites, non-profits, small businesses that we support, have no Acceptable Use Policies (AUP) or they are poorly enforced.  As such, invariably we will find an end-user that is misusing the computer or network, and putting the company at risk. Some abuse is fairly innocuous; they may be shopping on E-bay, or Amazon, or watching YouTube, and for others the abuse is far more severe.

However, one of the most pervasive problems that we encounter is peer-to-peer (P2P) downloading of illegal material. Less savvy users will use FrostWire, eMule, and Gnutella clients, with the savvier user opting for the BitTorrent protocol, and Usenet.

What these end-users do not realize is that streaming media and downloading material saps bandwidth. Additionally, P2P networks may introduce code that would permit remote access to computer files, or otherwise compromise the integrity of the network.  In addition to this, for the business, and the individual there may be criminal consequences as a result of violating Federal or State laws. There may also be financial ramifications, in the form of civil suits brought by the RIAA and MPAA, and other trade associations.

Ethical Considerations

How Decisions Are Made

Translated from the ancient Greeks, ethics refers to ones’ theory of life. In answering the question “How should I live?” a person engages in a consideration of ethics---that is thinking about what is right and what is wrong (Wicks et al., 2009). However, the code of human ethics is as varied as our fingerprints, with no two people having the same set of values. Yes, there are some precepts that are universally accepted; however there is no consensus amongst people on the copying of software.

The dynamics of ethics.  For some people, their ethics are based upon their religious foundation. They base their actions, and how they conduct themselves, on what they have been taught, and have internalized into their belief system. As is germane to this case, most of the various world religions espouse the viewpoint "that one should not steal". However, there are things that one's religion may tell a person that they should do, that they will not.  Thus, there must be other forces that influence our ethical decisions.

One could suggest that we are ethical because it is the lawful thing to do. However, there have been many laws that have been unethical.  Alternatively, we conduct ourselves in a certain ethical manner because that is how everyone else in our society conducts himself or herself. However, even within a family, state, or between nations, there can be many variations in ethical values.  

Our ethical journey.  There is no definitive answer to why we attempt to conduct ourselves in an ethical manner; some posit that it is due to the evolution of ethics (Bromberg, 2011).  As humankind evolved, people may have realized that persistent conflict could threaten their survival.  As humans started to live in closer proximity to one another, there needed to be regulating systems that kept strife and contention to a minimum. Therefore, we as a species have developed customs, protocols, and laws that aid in guiding relationships among people. Ultimately, this evolution has led to utilitarian ethics, that our decisions and actions should result in the most good and least harm, for those that are affected.

Legal Sanctions

Intellectual Property Law

In the present case there are additional considerations besides the ethical ones, and they are the legal consequences of our action or inaction.

As regards international regulation of intellectual property, there is the RIPS Agreement, the World Intellectual Property Organization (WIPO) Internet Treaties and the Berne Convention standards that signatory countries have committed themselves to.

In the United States, Title 17 of the U.S. Code provides copyright protection to original works of authorship, to a wide variety of mediums. Copyright protection is provided under the purview of 17 USC § 102 to: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

17 USC § 501 - Infringement of copyright .  Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies of phonograph records into the United States in violation of section 602, is an infringer of the copyright or right of the author.

Further, under 17 USC § 506, it is a criminal offense for any  person to willfully infringe upon a copyright, and they shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonograph records of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

At a minimum a court may grant temporary or final injunctions to prevent or restrain infringement of a copyright. Additionally, the court may order the impounding, on such terms as it may deem reasonable, of all copies of phonograph records claimed to have been made or used in violation of the copyright owner's exclusive rights,

As regards statutory damages, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, a sum of not less than $750 or more than $30,000 as the court considers just.

In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.

Counterfeiting. If the individual were also to be engaged in counterfeiting any of the afore-mentioned, then 18 USC § 2320 - Trafficking in counterfeit goods or services, would apply. The offense of counterfeiting is to intentionally traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services.  The penalties are: If an individual, a fine of not more than $2,000,000 or imprisoned not more than 10 years, or both. If not  an individual, then a fine of not more than $5,000,000; and for a second or subsequent offense, if an individual, shall be fined not more than $5,000,000 or imprisoned not more than 20 years, or both, and if other than an individual, shall be fined not more than $15,000,000.

No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat. 2678 (NET Act).  In the case under discussion, the NET Act, a federal law passed in 1997, which governs the illegal copying of computer software, could also apply.  The NET Act mandates that it is a federal crime to reproduce, disseminate, or share copies of digital copyrighted works such as software applications, music, movies, or games.  The law also states that even if the individual copying or disseminating the material does not receive financial remuneration, or with a commercial intent, that they are in violation of this law.

 The law stipulates a maximum penalty of three years in prison and a $250,000 fine, for an individual, and a $500,000 fine for a business. The law also establishes a recidivist provision that increases penalties up to 6 years for second and subsequent copyright infringement offenses.  A less severe violation would result in a misdemeanor, with a maximum sentence of up to one year in prison and / or a fine of up to $25,000 for individuals and $100,000 for a business entity.

The Digital Millennium Copyright Act (DMCA). The DMCA amends United States copyright law, to criminalize the production and distribution of technology that allows users to circumvent copy-protection methods. The DMCA stipulates that a person or business injured, may file for relief via a civil action in federal court.

It is a criminal offense to knowingly violate the DMCA for commercial or financial gain. Penalties are up to a $500,000 fine or a maximum of five years imprisonment for a first offense.  For subsequent offenses, there is a maximum $1,000,000 fine or up to 10 years imprisonment.

The Digital Millennium Copyright Act (DMCA) also requires that upon notification that someone on their ISP is disseminating copyrighted material, that the ISP must take steps to have the content removed. At a minimum this can result in a user receiving a DMCA order to cease and desist disseminating the material, or face the loss of ISP use. For a business entity, this may mean the temporary or permanent loss of the use of that particular ISP,

Trade Associations

Business Software Alliance (BSA). An initiative of the BSA provides rewards for reporting illegal use of software.  A reward may be payable if the BSA pursues an investigation and, as a direct result of the information provided that there is a monetary settlement from the reported organization. The amount of the reward is outlined in the table below.

BSA Reward Payment Guidelines

Settlement paid by Company

Potential Reward payment

$15,000 - $100,000

Up to $5,000

      $100,001 - $200,000

Up to $10,000

$200,001 - $400,000

Up to $20,000

      $400,001 - $600,000

Up to $30,000

$600,001 - $800,000

Up to $40,000

      $800,001 - $1,000,000

Up to $50,000

$1,000,001 - $2,000,000

Up to $100,000

$2,000,001 - $3,000,000

Up to $150,000

$3,000,001 - $5,000,000

Up to $250,000

$5,000,001 - $10,000,000

Up to $500,000

$10,000,001 - $15,000,000

Up to $750,000

Over $15,000,000

Up to $1,000,000

 

This could be applicable to the issue of our end-users storing software on our network , if the end user piracy is committed by the business entity installing, or allowing, unlicensed software on computers that it owns or leases for its employees to use in their work. However, it would not extend to piracy committed by individuals installing unlicensed software on their own computers for home or other personal use outside of their employment.

The Software & Information Industry Association (SIIA).  The SIIA provides rewards of up to $1 million, for verifiable illicit software use by a corporation.  There are also rewards if the piracy is occurring over the Internet via a website, newsgroup, auction site, P2P network, FTP site, IRC, or BBC.

 

Conclusions

The issue off end-users placing illegal music and video on their computers and on the network is not a hypothetical scenario for us, rather it is one that we deal with regularly. Many of the end-users that we support see no harm in it, and tend to ignore us when we advise them of the consequences.

When we are faced with addressing this issue with the end-user, and their management, we do not feel that it is apropos to couch our argument in ethical terms. This is due to the fact that everyone’s code of ethics is different, and also because it is very easy for the person to rationalize their actions by stating “that no one is being harmed”.

However, we view our role to the business entity as someone that is entrusted to protect it against threats both externally, and internally. As such, we share with them the legal and financial consequences as outlined in this report. Additionally, we lock down the firewalls and put in place other measures to prevent the activity from re-occurring.

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