CS 340 Exam 3

Social Media Monitoring of Employees

-(Obviously, employers can monitor all public posts.) -What about employers or potential employers requesting Facebook access. -Methods: -Outright requests -Friending -Requesting current friends show them candidate/employee profile -Over the shoulder access -Business access

A kind of Trademark infringement:Cybersquatting

-1999 Anti-cyber-squatting Consumer Protection Act -Creates a cause of action for mark owners against those who in bad faith -"register, traffics in, or uses a domain name" -that is the same as or confusingly similar -to a trademark.

Gripe Sites

1st Amendment protection for Gripe Sites, not a form of squatting. Ex. People of Walmart; no one is going to confuse this site for Walmart's site

$200

Civil case statutory damages: Innocent Infringer status sets damages at _____ per work instead of up to $150,000 per work.

1974 Privacy Act

Codified 5 principles related to government handling of information: 1. Notice/Awareness 2. Choice/Consent 3. Access Participation 4. Integrity/Security 5. Enforcement/Redress

Computer Matching

Combining info from different db using an identifier each has in common

Rights of a COPYRIGHT holder

Exclusive right of the holder to Reproduce Create derivative works Distribute copies Perform and display the work publicly (... for sound, to transmit recording)

Requirement #3: Fixation

Fixed in a tangible medium of expression Embodied in a copy Writings in tangible medium Definition of fixed is viewed broadly: books, notes, recording, electronic media, etc.  Until fixed in tangible medium, not protected by ©, but © begins immediately when fixed

Author Creation

For copyright, the originality requirement is met with:

Who can claim a copyright?

If you are the author of that work, you can claim the copyright

True

Katz follow-up: There can be some reasonable expectations of privacy in a public place.

1st, 9th, 3rd, 4th, 5th, 14th

Many amendments illustrate that the framers of the Constitution believed privacy was something to be protected.

Patent

Quid pro quo happens with:

Shared with

The Third Party doctrine says you loose a reasonable expectation in information that is ___ a third party.

Aaron's computer rental chain settles FTC spying charges

The rent-to-own computer company settles a complaint that accused it of secretly taking Webcam photos of users in their homes and recording keystrokes of Web site login credentials."

US legal background for IP

US Constitution, Article 1, § 8 "The Congress shall have the Power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." What happens after the time for protection elapses?

Wall Street Journal Article: Ashley Hayes-Beaty

• Surreptitious installation of tracking technology • Not just cookies, but real time logging • Buying and selling of profiles Advertisers: • No longer paying for ad placement on a site • Paying instead to follow users around Internet with personalized marketing messages

Increased Government Surveillance after 9/11

• The Patriot Act provided: • More monitoring authority for law enforcement and intelligence agencies • Surveillance of Internet use and email • Created nationwide system for search warrants and wire tapping • Allowed for roving surveillance • Expanded search warrant exceptions

Amendment 3 (III)

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Soldiers cannot demand to stay in any house without the owner's consent.

Amendment 5 (V)

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." You cannot be charged for the same charge twice

Amendment 9 (IX)

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." There are some rights that are not listed out explicitly but are still important and still exist for citizens.

Amendment 4 (IV)

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." You need a specific warrant to search somebody's property or belongings; this amendment avoids the "Enter and seize" British law.

Profiling

"the gathering, assembling, and collating of data about individuals in databases which can be used to identify, segregate, categorize and generally make decisions about individuals known to the decision maker only through their computerized profile." Analyzing data to determine common characteristics of people likely to engage in a behavior. Uses: Objective: Identify terrorists OR better targeted advertising OR donors

Current duration of a copyright? Two possibilities:

-Usual: Life + 70 years -Work for hire: earlier of 95 years after publication or 120 years after creation

Cases asserting employer rights to read email

-Bourke v. Nissan: -Ideal employee; showed group of people how he used email, saw inappropriate messages, got fired; court held for Nissan because it was company property -Smyth v. Pillsbury: -Held for Pillsbury -US v. Hamilton: -Wrote emails to his wife about how they are going to use the money he was planning on embezzling -***Much emphasis is placed on the employer ownership of the equipment the employee is using. Courts may rule differently if there is evidence employer was trying to "snoop on personal, union or whistle-blowing activities."***

Technology's Impact on Work

-Change in the nature of work itself -Ability to have "greater control over employees; heightened intrusiveness" Monitoring Methods: Monitoring methods: voice mail, email, web browsing, positional monitoring with and other tech, health monitoring.

Riley v. California / US v. Wurie

-Consolidated cases -Riley was driving with an expired license plate and license -Car was searched and police found 2 unregistered guns -Found cell phone and searched and found evidence that he was part of the Lincoln park Gang -Wurie was found with 2 cellphones -Did a reverse search of "My House" and the found cocaine -Questions presented: -Whether evidence admitted at trial, obtained in a search of cell phone, violated petitioner's Fourth Amendment rights. -Whether the Fourth Amendment permits the police, without a warrant, to review the call log of a cell phone found on a person lawfully arrested.

Business Method Patent

-Coupling a process with software -Ex: Amazon 1 click business method patent (p. 150-151) -Priceline reverse auctions

Illinois v. Caballes

-Drug sniffing dog as technology -Does law enforcement need a warrant to use the dog's sniffer? -Drug sniffing dogs do not need a warrant because it only detects illegal activity rather than everyday life! -Caballes lost

Patents (pp. 11-112; 150-151

-Exclusive grant of property rights to the holder from the US government -prohibits others from making, using or selling the invention in the US Right to exclude others; holder has exclusive rights to make, sell, use invention -In exchange for patent, enough information must be given so that at end of the patent term others may be able to use/create the invention -Quid pro quo: something for something -In general, patent protection runs 20 years from the filing of the application

Stengart v. Loving Care

-Given laptop that was said could be used for personal use -Stengart was suing employer for gender discrimination -Stengart used her Yahoo! account on company provided computer to email her attorney -NJ S. Ct. held Stengart had a reasonable expectation of privacy in her emails to her attorney due to Loving Care's ambiguous privacy policy, allowance of personal use on the computer & importance of attorney client privilege.

Griswold v. Connecticut (1965)

-Griswold was a nurse at Planned Parenthood -1879 CT law prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception."  -Griswold & Dr. Buxton opened clinic; convicted for violating this CT law -Appealed to the US S. Ct, challenging conviction under the 14th amendment -Supreme Court agreed with Griswold that it was a private matter to discuss family planning!

MGM Studios, Inc., et. al. v. Grokster, Ltd., et. al.US S Ct 2005

-Grokster used "no servers to intercept content of requests" or to "mediate the file transfers" and therefore did not "know when a particular file is copied" -Grokster marketed its software as a "napster alternative" -"#1 alternative to Napster" -"[w]hen the lights went off at Napster ... where did all the users go?" -Lots of facts in record showed that "principal object was use of their software to download copyrighted works." -Grokster obtained ad revenue from ads that its users were exposed to -MGM claims Grokster should be liable as a contributory infringer and should have vicarious liability for infringement. -S. Ct issue & holding: "The question is under what circumstance the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the objective of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

Early days of computing:

-Hardware manufacturers made their own software which worked just on their machine as there weren't really competing manufacturers. -The 70s saw the emergence of standalone/independent software firms. -The Copyright Act of 1976 explicitly recognizes ability to copyright software -Creative expression is what is protected -Concept is the licensing use not ownership of the item.

Trade Secret Protection

-Info that gives a competitive advantage -Applies to formulas, recipes, designs, processes -For trade secret protection there are requirements that you have taken measures to protect information. Once information is out (in public domain) it is no longer eligible for trade secret protection. -The purpose of many non-disclosure agreements is aimed at maintaining trade secrets.

Buying a Batman toy, in 1979 and 2019

-Information as a commodity: -Current technology makes it feasible, practical and worth economic sense to gather more information about each and every purchase. -This information has value to: -Manufacturers -Merchants Similar sellers -Other customers

US v. Antoine Jones (2012)

-Issue: Does the use of a device on a vehicle to monitor movement constitute a search under the 4th Amendment? -Suspected of being in a gang and selling drugs -Warrant was approved but only for a set amount of time; police did not get the tracker on the car before the warrant expired -Supreme Court ruled that the police needed an ACTIVE warrant and was considered an illegal search

Case Study Examples for Fair Use

-Judson Laipply's Evolution of Dance: -Commercial, not private (strike) -Not creative enough (??) -Small snippets -Not impacting original work It's Okay! -Ogg's video of Jack White's I'm Shakin': -Commercial, not private (strike) -Not creative, (strike) -Whole song (strike) -Effect on original market, someone could listen to whole song repeatedly (strike)

When you can use someone else's trademark on your web page

-Key is to avoid confusion of brand or affiliation. -Can use when: -There is a former relationship -Playboy v. Wells (1999) -To identify goods offered for sale -Ty, Inc. v. Perryman (2001) -To criticize or critique -Bally Total Fitness v. Faber (1998) -To compare products, comparative advertising

Quon Ruling

-Lower Cts: -District: if audit was to determine if wasting time, unconstitutional; if to ensure officers not paying hidden fees, constitutional. Jury decided what purpose was; said it was to gauge efficacy or char limits, & therefore constitutional. -Court of Appeals: search had legitimate purpose but was not reasonable in scope; could have been performed in a way that did not violate 4th Amendment rights. Court found violation. -Final say: The pagers were owned my the city; the city won!

Guiding forces in privacy: (1)

-Market forces: consumer driven. If you don't trust that company with your data, you might not do business with them. • Credit card breaches: Target holiday breach Dec '13. Penalties paid by Target $19 mil

File Sharing- Is it fair use?

-No, see the BMG Music v. Gonzalez case (7th Cir, 2005) -Fact -she got 1,370 songs during a few weeks -kept them on computer until caught -Gonzalez claims she was "sampling" the copyrighted works to determine what to actually purchase. -Because this is a review of a summary judgment court must assume her statements were true. -She owned some of the music, later purchased some, but kept copies of it all. -Some she never owned but kept these illegitimate copies -BMG sought statutory damages for 30 songs. ($22,500): Ct held: "downloading full copies of copyrighted material without compensation to authors cannot be deemed fair use" court likened her behavior to a shoplifter who takes "30 compact discs, and plans to listen to them at home and pay later for any he liked."

Atari v. N. American Philips

-North American Philips created K.C. Munchkin which was similar to Atari's PacMan. Like in the previous case Philips copied NO lines of Atari's code, but create rather identical gameplay. Was this copyright infringement by N. American Philips' K.C. Munchkin? ANSWER: YES

Capitol, Virgin Records v. Thomas (2007-2012)

-Notable as first case w/ jury trial. -First trial problem: standard asked whether Thomas "Made available" this files. -Manifest error of law in this jury instruction. -Plaintiff must show actual distribution occurred.

Blurred Lines legal proceedings

-Original lawsuit was filed by Thicke, Williams & TI against Gaye's family. -Thicke et al. sought a declaratory judgment that "Blurred Lines" did not infringe as "being reminiscent" doesn't infringe -Gaye's family filed a countersuit claiming infringement & documented Thicke's admission -At trial, the jury did not get to hear a comparison of the two recordings like we did. The judge ruled that the jury would only hear a live musician playing Gaye's song (as Motown owns the rights to the recording not Gaye's family.) -On March 10, 2015, the jury returned a verdict against Thicke & Williams awarding more than $7.3 million to Gaye's family. Song has earned a profit of $17 million so far. -After various appeals, in December 2018, the Gaye estate was awarded $4,957,631

Weird Al Yankovic & Parody

-Parody and fair use. -Parody as transformative use -Weird Al takes the position of asking for artist permission. -He does NOT actually have to have permission to do a parody but he wants other artists to be ok about it. -Parody does not compete against original author for fair use (factor 4.)

City of Ontario, CA v. Quon

-Quon was a SWAT team member -City provided text messaging pager to police officer -Previously, City had announced a Computer Usage, Internet & Email policy, specifying employees to have no expectation of privacy or confidentiality. -Eventually so many officers went over the monthly limit, the chief looked into this to see if the limit was too low (work-related) or if these overages were due to personal messages, and transcripts of msgs were obtained.

Guiding forces in privacy: (2)

-Reactive (they go into place after something happens), piecemeal system of laws in the US • If a problem is identified, often a law will be enacted for that one subset of problems • Drivers License Data • HIPPA • VPPA

What trade secrets can protect:

-Related to software: -"graphics, source code, object code, algorithms, programs or other technical descriptions, data flow charts, logic flow charts, user manuals, data structures, and database contents." examples from David Himelstein -Trade secret status offers indefinite protection as long as secret is kept -What if your trade secret has been "reverse engineered"? -Understanding the difference between reverse engineering & misappropriation

View of work product as author's property

-Should there be rights given to this? -Value added by your efforts: John Locke's labor-desert theory Ex. A farmer, crops & animals -Property theory in general: Utilitarianism, giving a property interests leads to the greater good -Hegel's Personality theory, IP protection as an expression of self

Support for the NSA practices came from the Third Party doctrine

-Smith v. Maryland, US S. Ct 1979 • 4th amendment: Reasonable, legitimate expectation of privacy Katz • "Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property"' was invaded or that police intruded into a "constitutionally protected area." •b/c users "convey" phone # to the phone company, no expectation of privacy in #s you dial. • "This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" : third party doctrine

Trademark

-Something that identifies the goods of one manufacture or seller from another -Symbol, word, design, or something else -Trade Dress: involves the look and feel of a product or its packaging -Test looks for distinctiveness, attributes of arbitrary or fanciful are important. -Similar IP: the Service mark, ids a service -Trademarks are indicated by TM or (R) symbols -Illegal to use without the registration process -Having a trademark can help you enforce against the importation of infringing goods -Trademarks require renewal (10 year) -Protection until mark becomes generic

Katz v. US (1967)

-The "Phone Booth" Case -Katz placed bets in phone booths. -FBI placed bug outside booth to record conversations -Argument was that as it was outside it was not a protected space -Issue for the Court: Did Katz have a reasonable expectation of privacy? -The Supreme Court held that the "4th Amendment protects people, not places" -What one "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." -Katz won!

Kyllo v. US (2001)

-The "Weed case" -Issue: whether use of the thermal imaging camera constituted a search under 4th amendment and therefore resulting evidence not admissible as there was no search warrant -Kyllo was convicted based off evidence using a infrared sensor but they did not have a warrant -The Supreme Court agreed with Kyllo!

Societal Debates on IP

-The difficulty of 'owning an idea,' Thomas Jefferson -Is the protection promoting progress or limiting progress? Suitability: Ex. John Phillips Sousa's view on recorded "canned music" circa 1913 -What constitutes a reasonable "limited time"? Continuous increase in term length -The digital dilemma

Requirement #2: It's a work of authorship

-Think of this as a subject matter test. Is copyright the correct kind of protection for this work? -Requirement of human involvement, human author -Works produced by mechanical process or random process without human involvement do not qualify, nor do works produced by other animals. -No standard of artistic merit required. -Typical works of authorship: literary, musical, dramatic, pantomimes/choreographic, graphic & sculpture, movies, sound recordings, architectural -Conversations, practical jokes are NOT copyrightable unless there is some intent to publish -See Estate of Hemingway case

Lotame

-Tracking Company -Tracking companies say this should be "considered anonymous because it identifies web browsers, not individuals."

Patent Test

-United States Patent and Trademark Office (USPTO): verify inventions are patentable and meet two criteria: -Novelty (new): An invention is novel only if it has not previously been invented by someone else -Non-obviousness: A solution to a problem that is obvious to another specialist in the appropriate area cannot be patented -Eligibility of software, change to allow patent of software, Diamond v. Diehr (1981) -Original process involving computer calculations includable in patent.

Riley and Wurie discussion & holdings

-When are warrantless searches constitutional? -Reasonableness test -The Chimel/Robinson/Gant case rules on search incident to an arrest -Officer safety, evidence preservation -Holding: these searches violated the Fourth Amendment because they had nothing to do with officer safety -The Court does not extend Robinson to data on cell phones, distinguishing in a "qualitative and quantitative sense" from other objects carried on the person. Much more information is stored, often going back in years, creating an extensive digital record.

Intellectual Property- What is being protected?

-With intellectual property we are protecting the "creative expression" of the work. -For copyright, the creative expression includes: -organization of ideas -presentation -characters and events -Facts, ideas, concepts, processes and methods of operation cannot be copyrighted (lack creative expression) -Specific processes can be patented, but not everything that processes can get a patent. -For example, no one can patent the concept of a word processor.

Quon

-With the audit found that many were not work-related and some sexually explicit. -IA received transcript & compared it to Quon's work schedule times & dates. -Aug: 456 msgs, 57 work related -Avg 28/day, 3 work related -Joint lawsuit alleging 4th Amendment violation & SCA by obtaining and reviewing transcript of messages.

Limitations of the Privacy Act

1. Applies only to government databases not private ones 2. Applies only to records that use a personal identifier (name, number) 3. No agency is in charge of enforcement, individual agencies choose what is exempt 4. Inter‐agency sharing of info for "routine use"

4 kinds of protection for IP

1. Copyright - as a "literary" work 2. Patent - an invention or process 3. Trademark - as a representation 4. Trade secret - confidential process/technique for competitive advantage

Privacy concerns have been exacerbated by cyber‐technology in at least four ways:

1. amount of personal information that can now be collected; 2. speed at which personal information can now be transferred and exchanged; 3. duration of time in which personal information can now be retained; 4. kind of personal information (such as transactional information) that can be acquired.

To what does having a copyright entitle the holder?

4 rights: reproduction, distribution, derivatives, transmission/performance

Yes, it would meet fixation

A photo only stored electronically would meet fixation.

Are any privacy issues unique to cyber-technology?

Accessibility of information, from anywhere

Law enforcement used the FLIR to see inside the house looking for heat for evidence.

According to the Supreme Court in Kyllo, the first search was when...

Fair Use

An exception to copyright (and only copyright...) Began as a judicial doctrine (from cases) "Allows uses of copyrighted material that contribute to the creation of new work and issues that are not likely to deprive authors/publishers of income for their work." Possible fair uses: "criticism, comment, new reporting, teaching, scholarship, or research." (Study page 111)

The Netflix Challenge

An open competition for the best collaborative filtering algorithm to predict user ratings for films, based on previous ratings without any other information about the users or films, i.e. without the users or the films being identified except by numbers assigned for the contest.

Typo-squatting

Anticipate typos; assume that people are going to be hurrying to type in URL and mess up a few letters and come to their site

Sony Case

Applied the 4 factor fair use test the situation of recording of a film broadcast on TV for later personal viewing. 1. Purpose and character of the *new* use. -Private -Idea of mere time-shifting 2. Nature of the *original* copyrighted work -Usually creative 3. Amount and substantiality of portion used -Ideally whole 4. Effect of the new use on potential market of the original work -Not clear that there was a harmful effect -Seen as increasing audience and given bigger market for ad revenues

Employee Monitoring

As of 2016, employee monitoring is a $200 million/year industry, expected to grow to $500 million/year by 2020.

Fair Use Balancing

Balance between: -Promoting production of useful work (by granting copyright) AND -Encouraging the use and flow of information (by limiting copyright)

Lotus v. Borland, US Supreme Court (1996)

Borland's Quattro Pro replicated the experience of using Lotus' 1-2-3. Borland copied NO lines of code, but worked to emulate the experience. The menus and shortcuts were the same. Was this copyright infringement by Borland? ANSWER: NO

No, as he was a government employee, monitoring has no bounds, and he had no reasonable expectation of privacy.

Did the Supreme Court rule in favor of Quon?

Dara Baase's A Gift of Fire

Disclosing information: In privacy analysis "(t)he critical point is whether the user is told and thus can make an informed choice" Secondary use of information occurs when information is used "for a purpose other than the one for which it was supplied." Ex. Suppose you provide your address so that a purchase can be mailed to you and an email address so that you can receive "tracking" updates. What would be some secondary uses a company might make of these pieces of information?

No, the Privacy Act establishes data handling practices only for government entities.

Does the Privacy Act establish mandatory data handling practices for businesses?

Not fair use

Downloading a full song w/o compensation to artist is

Amendment 14 (XIV)

Due process clause; Equal protection clause

Kelly v. Arriba Soft Corporation (9th Cir., 2003)

Facts: Professional photographer sues search engine operator for indexing his images. In the process, thumbnails were created and stored on the Arriba Soft's server. Issue: Do these unauthorized copies of his images violate Kelly's copyright? Ct analysis: 4 factor fair use analysis Holding: Arriba's use of Kelly's images as thumbnails is fair use (first two in Arriba's favor, third factor is neutral, the last factor was in Kelly's favor)

CSMI's Code of Best Practices in Online Video

Fair uses are often -Transformative -Proportional or incidental -Credit sources

Galoob v. Nintendo (9th Cir, 1992)

Game genie case. Users can modify existing games (extra lives, invincible char., unlimited ammo, etc.). Issue: Is this a derivative work? Ct Analysis: 4 factor fair use; is it derivative? Holding: This was fair use, may even help Nintendo sell more

Re-identification

Identifying the individual from a set of anonymous data One method, identification based on searches performed. Self, hobbies, cars, sports teams, health Example: the 2006 AOL release of user data

Transformative

If your use is ________________, it is more likely to be fair use.

Copyright Infringement Consequences

In 2009, RIAA announced it would cease chasing after "new" individual infringers and instead work with ISP's to stop the downloading. Current cases would continue. Statutory damages for copyright infringement (civil) are up to $150,000 per song. Innocent infringer: $200. Example case: Whitney Harper as a 14-16 y.o. Criminal infringement damages are up to $250,000 + mandatory jail time.

Limited Times

In the Constitution, what is the length of time of protection for IP?

Yes

Jones follow-up: Do police need a warrant to attach a GPS device to your car?

Cases against File Sharing Services: NAPSTER

Napster -THE NAPSTER SIDE -A rejected argument of Napster was that fair use protected the software maker of being liable -Sampling -Space shifting -Some works voluntarily shared -(Sony device parallel) -DMCA as a search engine -RIAA -Napster material contributed to infringement -Napster had a direct interest in infringement -Napster irreparably harmed RIAA members -90% of files were in violation -Napster actively tried to remain ignorant in users' identities -Court sided with RIAA

Does the 4th Amendment not apply to workplace privacy? (A right to be secure against unreasonable searches and seizures)

No, not necessarily. This Amendment only protects you against Government action.

Copyright Basics

Not every work gets/can get a copyright. A work must meet the copyrightable work test. The test examines the work. The work must be: Original Work of Authorship Fixed in a tangible medium

Study from Duke University

One study from Duke University estimated that habits, rather than conscious decision‐making, shape 45 percent of the choices we make every day Findings: Life event make us VERY VULNERABLE to marketing intervention and make us more willing to break or develop a habit

Factors a court examines in trademark infringement cases

Ownership of valid, registered mark Alleged infringer used In commerce The mark or similar symbol In connection with offering for sale, distribution, advertising goods or services the use caused likelihood of confusion, mistake or deception.

Panopticon

Prison design that never really happened; built in a way that a guard house was in the middle and the cells were around it; the prisoners wouldn't know if the guard was checking on them at a particular moment; you had to be good all the time

Military AI

Program for monitoring to detect "micro changes" to predict untrustworthy officers

Robbins v. Lower Merion School District

School district surreptitiously activated webcams using LANrev on laptops provided to students while students were off campus They gave the students laptops to use on their own. The school was turning on webcams to monitor what students were doing at home (theoretically to avoid cheating) Kid was eating Mike and Ikes and school thought her was taking drugs; student was suspended This was considered a breach of privacy!!!

Data Mining

Searching and analyzing masses of data to find patterns and develop new info

Is only applicable to CSLI data

The Carpenter decision

Yes you can legally lend it. Yes you can legally give it Yes you can legally sell it All of the above are true Only A and B are true (you may not sell it.) Answer: All of the above

Suppose you buy a hardback of the novel Harry Potter and the Cursed Child. Once you are finished reading it, can you legally lend, give or sell it to your friend?

True

Technology has exacerbated privacy concerns of how information is kept and accessed.

True

The court could find fair use even if the copier of the work makes money.

Doctrine of First Sale, p. 111

The doctrine means that the copyright holder is not entitled to a second royalty. Works to extinguish the copyright holder's interest in that particular copy (once that copy is sold to a consumer.) Ex. Used paperback book resale Copyright holders are still protected from unauthorized copies of their works This doctrine was created in a time (1908) when you always purchased a tangible copy of intellectual property A paperback, a poster, a vinyl record

False

The word privacy appears in the Constitution.

Comparing US and European Policies

US focus is on ownership of resources -Issues relate to finding the balance between an organization's legitimate business interests and an accommodating an individual's privacy interests. Continental Europe, page 187 -Focus is on human dignity and the idea that worker's dignity must not be different because the worker is at his/her place of work. -Italian prohibition of most remote surveillance -French Labor Code, Article 120-2, bars measures that are not justified by the nature of task or proportional to the objective of the business

False (This is describing profiling)

Using gathered information to make decisions about people and predict future behaviors is called re-identification.

Requirement#1: work is Original

What original means: -Authored -Human involvement, not slavish copy -Independently created (not merely copied from other works) -Discovery of facts and phenomena cannot be copyrighted (those did not original with author), but presentation can be with a minimum creativity req. -Does not have to be novel Examples: Discovered letter (You can't copyright it) Dino facts (You can't copyright it) Translation (You can't copy right it) Wrigley Field (You can copyright it)

Work for Hire

When you pay someone to create a creative work and you retain the copyright, that is known as

Trade Secrets

Which IP can have the longest or shortest length of protection?

Amendment 9 (IX)

Which amendment states that not all rights retained by the people are listed in the Constitution?

Gonzalez

Which case is the "downloading full works without compensation cannot be fair use?"

Effect on the market of the original

Which factor from Sony wins or loses a fair use case?

Reproduction Create derivatives Distribution Performance/display/ transmit !!!!!!All of the above!!!!!

Which of the following is an exclusive right of a copyright holder?

Utilitarianism Theory

Which theory is interested in protecting intellectual property for "the greater good" ?

Getting information from their online searches AND By figuring out items that pregnant women purchase with disproportionate frequency.

With the Target case study, we learn that Andrew Pole, Target's statistician figured out women were pregnant and in their second trimester by

Yes, it would be

Would a selfie likely be a work of authorship?

4th factor, effect on the original work

You must control the ___________________ to have any chance at claiming fair use.

Carpenter Holding

• " (W)e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter's wireless carriers was the product of a search." • "(S)ociety's expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual's car for a very long period (Jones)." • "Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable." • 5feetcomment • The government must obtain a warrant based on probable cause to get these kinds of records. The Court states that this ruling needs to be narrowly construed and is only applicable to these kinds of records (CSLI.) • "The progress of science does not erode 4th amendment protections."

Carpenter v. United States (2018)

• "This case presents the question of whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements." • How cell phones work, scanning for best signal continuously whether being directly used or not. "Each time the phone connects to a cell site, it generates a time‐stamped record known as cell‐site location information (CSLI)." • More precise location possible in areas with more towers. • Cell companies have a business purpose to recording this data (look & fix weak spots & charge roaming if applicable.) Data is also sold to data brokers. CSLI data for calls, texts and data connections.

Carpenter Reasoning

• 4th amendment: was created in response to British practices in the colonies. • Riley, Jones and Katz cases discussed and reminder of the Katz holding that "the 4th protect people not places" and "what one seeks to protect may be constitutionally protected" • The Court said that to decide what reasonable expectations include we look to see what was intended when Constitution was created and relates to avoiding "too permeating of police surveillance" and avoiding use of police technology tools that encroach beyond eyes without a warrant (Kyllo) as well as avoiding the immense storage & data of the cell phone's capabilities (Riley.) • The Court says the information obtained by technology is different than the previous cases in the sense that it is location data maintained by a third party. The Court said it is most similar to Jones, the GPS tracker that needed a specific warrant to be used, but that this is a bit different because it is Carpenter turning his location data over to the cell phone companies by his use of the phones. • The Court states affirms the Third Party doctrine to the extent of losing an expectation of privacy in information turned over to third parties. The Court says the Smith case shows the idea that dialing a number certainly shares who you want to call and it is reasonable to expect that. However the technology that is pinging location data with cell phone signals is not the same and should not be treated that way.

NSA (National Security Agency)

• By law, NSA may not "spy on" Americans • Exception: •If the American is connected to the terror suspect by no more than two other people (a.k.a. two hops) • Post 9/11 the NSA was given orders to be more active be more aggressive in determining threats

Carpenter facts and issues

• Carpenter was an alleged accomplice of a group of thieves robbing Radio Shacks and T‐ Mobile stores. • Prosecutors got Carpenter's CSLI cell records through the Stored Communications Act, which allows for telecommunications records disclosures that are relevant to a criminal investigation. • With this evidence (12,898 data points) Carpenter was charges with 6 counts of robbery. Evidence shows Carpenter at these exact locations at the exact time of the robberies. He was convicted and sentenced to 100 years. • Carpenter argued a motion to suppress this evidence as the "Government's seizure of the records violated the Fourth Amendment as these were obtained without probable cause." • Gov't says Carpenter lacks reasonable expectation of privacy in these records as he shared his location with 3rd party, the wireless carriers and this constitutes a business record w/ no expectation of privacy. Sixth Circuit Court of Appeals sided with the government.

Public Records

• Disclosure in the day to day living. Records kept for legitimate governmental purposes. • In the past, this information was buried in paper; cyber‐technology makes accessing these records simple • Varies by state but often includes: • Marriage, birth, death, divorce, wills • Arrest, convictions • Census, property tax • Some states, 911 calls become part of the public record

Edward Snowden

• Leaked details of the inter‐workings of NSA's surveillance infrastructure. • June 14, 2013 charges: • Theft of governmental property • Espionage Act charges • Unauthorized communications of national defense information • Willful communication of classified intelligence to unauthorized persons -Tactics used by the NSA against tech companies learned from Snowden's disclosures: • Forced "voluntary" cooperation • Stealing their encryption keys • Altering their software/hardware • Forcing their cooperation through court orders in the United States Foreign Intelligence Surveillance Court.