Computer Ethics and the Appropriate Use of Electronic Resources

I. Computer Ethics

Computer access—so common as to seem a right—is, in fact, a privilege and is conditional upon responsible and ethical use. Copyright law, fair-use policies, and emerging laws concerning downloading are complex issues that you need to understand. The second portion of this booklet deals with these issues. You will be asked to acknowledge your agreement to abide by the Tufts Information Stewardship Policy if you want to use Tufts electronic resources. Be sure you understand the requirements. Increasingly, the consequences for violations are drawing the attention of not only the University, but also of the courts. The University cannot protect you if the recording industry pursues you for downloading even a few MP3 files.

A. An Overview of Your Rights and Responsibilities in Cyberspace

The internet is a powerful tool for communication—powerful in its ability to reach a global audience and revolutionary in its accessibility to those who formerly were only at the receiving end of mass communications. With access to the Internet, anyone can now effectively be an international publisher and broadcaster. By posting to Usenet or establishing a Web page, for example, an Internet user can speak to a larger and wider audience than the New York Times, NBC, or National Public Radio. Many Internet users, however, do not realize that that is what they are doing.

It is not surprising, given these facts, that the internet also has a powerful and revolutionary potential for misuse. Such misuse is particularly prevalent on college and University campuses, where free access to computing resources is often mistakenly thought to be the equivalent of free speech, and where free speech rights are in turn often mistakenly thought to include the right to do whatever is technically possible.

The rights of academic freedom and freedom of expression apply to the use of University computing resources. So, too, do the responsibilities and limitations associated with those rights. Thus, legitimate use of University computing resources does not extend to whatever is technically possible. In addition, while some restrictions are built into the University’s computer operating systems and networks, those restrictions are not the only restrictions on what is permissible. Users of University computing resources must abide by all applicable restrictions, whether or not they are built into the operating system or network and whether or not they can be circumvented by technical means. Moreover, it is not the responsibility of the University to prevent computer users from exceeding those restrictions; rather, it is the computer user’s responsibility to know and comply with them.

So just what are the applicable restrictions? The answer is: the same laws and policies that apply in every other context. Cyberspace is not a separate legal jurisdiction, and it is not exempt from the normal requirements of legal and ethical behavior within the University community. A good rule of thumb to keep in mind is that conduct that would be illegal or a violation of University policy in the offline world will still be illegal or a violation of University policy when it occurs online. Remember, too, that the online world is not limited to Tufts University. Computer users who engage in electronic communications with persons in other states or countries or on other systems or networks may also be subject to the laws of those other states and countries and the rules and policies of those other systems and networks.

It is impossible to list and describe every law and policy that applies to the use of University computing resources and the Internet—since, by and large, they all do—but in the following sections, some are described that students should know about.

B. Copyright Law

Copyright law generally gives authors, artists, composers, and other such creators the exclusive right to copy, distribute, modify, and display their works or to authorize other people to do so. Moreover, their works are protected by copyright law from the very moment that they are created—regardless of whether they are registered with the Copyright Office and regardless of whether they are marked with a copyright notice or symbol (©). That means that virtually every email message, Usenet posting, Web page, or other computer work you have ever created—or seen—is copyrighted. That also means that, if you are not the copyright owner of a particular Usenet posting, Web page, or other computer work, you may not copy, distribute, modify, or display it unless:

• its copyright owner has given you permission to do so, or
• it is in the public domain, or
• doing so would constitute fair use, or
• you have an implied license to do so

If none of these exceptions apply, your use of the material constitutes copyright infringement, and you could be liable under federal law for as much as $100,000 in damages for each use. In addition, if you reproduce or distribute copies of copyrighted material having a total retail value of $1,000 or more, you would be in violation of copyright law and possibly criminal law, even if you do not make a dollar from the distribution or posting. For example, this includes an instance where a software program or a music CD selection is posted on a Web site or is attached to an email you send to someone else or to a list serve. Consider that material with a value of only $50, downloaded 20 times, or sent to 20 friends, would meet this $1,000 threshold. Since the time necessary to restore lost data or damaged material is also covered by this law, it would take only 10 hours of repair time to meet the criminal threshold (federal law provides that the time is billed at $100/hour).

It is usually easy to tell whether you have permission to make a particular use of a work—the copyright owner will have told you so expressly, either in writing or orally—but it is not always so easy to tell whether the work is in the public domain or whether what you want to do constitutes fair use or is covered by an implied license.

It is not unusual for individuals to forward others’ email messages, although this practice technically constitutes a copyright violation in the absence of permission of the author. Cases are rarely pursued in this, since those involved are usually mutual acquaintances or colleagues. But beware, the law may support a legal claim against you if your judgment is wrong about whether the author will feel victimized or damaged by your forwarding of his or her writing to others without permission. It also makes good sense that if you wish an email message that you create not to be forwarded, you should probably communicate this as part of the message.

The Digital Millennium Copyright Act

In 1998 the United States Congress passed into law the Digital Millennium Copyright Act (DMCA). This act protects the rights of owners of digital media. The DMCA is beginning to be used as a basis for initiating charges against students who violate the copyright of digital media, including music, movies, software, images, and online books or manuals.

There have been many cases over the past few years involving students being sued by record and media corporations for infringing on copyrights through illegal downloading of music and movies. In some cases the students have had to pay significant amounts of money to settle the cases.

If you are not absolutely certain that a song, movie, or image is NOT copyright protected, then assume it is until you find out for sure. All digital media and software should have a license agreement on its primary download site or in documentation that comes with it.

Read the Tufts Information Stewardship Act. It outlines the responsibilities you have as a subscriber on the Tufts network. It describes what is not permitted on the network and explains conditions to which subscribers must abide. Remember, there are consequences for violating copyright laws both in the University and in the courts. The University will not be able to intervene on behalf of students who are being investigated by the music industry for suspected violations.

Do not take a chance. The music industry is now taking a much harder stance against downloading or providing protected material, even for a few MP3 files. Websites such as Apple’s iTunes, Ruckus, Napster, and Rhapsody have been established that provide legal downloads of music at no cost or inexpensively. Spend the money—protect your future.

C. Public Domain

Generally speaking, a work is in the public domain only if:

• its creator has expressly disclaimed any copyright interest in the work, or
• it was created by the federal government, or
• it is very old

Unfortunately, just how old a particular work must be to be in the public domain depends in part upon when the work was created, in part upon whether and when it was formally published, in part upon whether and when its creator died, and in part on still other factors. So, there is no one specific cutoff date that you can use for all works to determine whether or not they are in the public domain. As a rule of thumb, however, works that were created and published more than 75 years ago are now in the public domain. Works that were created less than 75 years ago, works that were created more than 75 years ago but published less than 75 years ago, and works that have never been published might be in the public domain, but, if you do not know for sure, it is best to assume that they are not.

D. Fair Use

In very general terms, a particular use of a work is fair if it involves only a relatively small portion of the work, is for educational or other noncommercial purposes, and is unlikely to interfere with the copyright owner’s ability to market the original work. A classic example is quoting a few sentences or paragraphs of a book in a class paper. Other uses may also be fair, but it is almost never fair to use an entire work, and it is not enough that you are not charging anyone for your particular use. It also is not enough simply to cite your source (though it may be plagiarism if you do not).

An implied license may exist if the copyright owner has acted in such a way that it is reasonable for you to assume that you may make a particular use. For example, if you are the moderator of a mailing list and someone sends you a message for that list, it is reasonable to assume that you may post the message to the list, even if its author did not expressly say that you may do so. The copyright owner can always revoke an implied license, however, simply by saying that further use is prohibited.

In addition, facts and ideas cannot be copyrighted. Copyright law protects only the expression of the creator’s idea—the specific words, notes, brushstrokes, or computer code that the creator used—and not the underlying idea itself. Thus, for example, it is not copyright infringement to state in a history paper that the Declaration of Independence was actually signed on August 2, 1776, or to argue in an English paper that Francis Bacon is the real author of Shakespeare’s plays, even though someone else has already done so, as long as you use your own words. (Again, however, if you do not cite your sources, it may still be plagiarism even if you paraphrase.)

Exactly how copyright law applies to the internet is still not entirely clear, but there are some rules of thumb:

• You may look at another person’s website, even though your computer makes a temporary copy when you do so, but you may NOT redistribute it or incorporate it into your own Web site without permission, except as fair use may allow.
• You probably may quote all or part of another person’s Usenet or listserv message in your response to that message, unless the original message says that copying is prohibited.
• You probably may NOT copy and redistribute a private email message you have received without the author’s permission, except as fair use may allow.
• You probably may print out a single copy of a Web page, a Usenet, listserv, or private email message for your own, personal, noncommercial use.
• You may NOT post another person’s book, article, graphic, image, music, or other such material on your Web site or use them in your Usenet, listserv, or private email messages without permission, except as fair use may allow.
• You may NOT download materials from Lexis-Nexis, the Clarinet news service, or other such services and copy or redistribute them without permission, unless the applicable license agreement expressly permits you to do so or unless your particular use would constitute fair use.
• You may NOT copy or redistribute software without permission, unless the applicable license agreement expressly permits you to do so.

E. Libel

Libel is the publication of a false statement of fact that harms another person’s reputation—for example, saying that “John beat up his roommate” or “Mary is a thief” can be libel if it is not true. If a statement does not harm the other person’s reputation—for example, “Joe got an A on the test”—it is not libel even if it is false. In addition, a statement of pure opinion cannot be libelous—for example, “I do not like John”—but you cannot turn a statement of fact into an opinion simply by adding “I think” or “in my opinion” to it. “In my humble opinion, John beat up his roommate” is still libelous if John did not beat up his roommate. If you honestly believed that what you said was true, however, you might not be liable if it later turns out that you were wrong.

A libel is published whenever it is communicated to a third person. In other words, if you say, “Mary is a thief” to anyone other than Mary, you have published that libel. That means that almost anything you post or send on the Internet, except an email that you send only to the person about whom you are talking, is considered published for purposes of libel law.

A person who has been libeled can sue for whatever damages are caused by the publication of the libel. Since a libel on the Internet could potentially reach millions of people, the damages could be quite large.

A good rule of thumb to follow: If you would be upset if someone else made the same statement about you, think carefully before you send or post that statement to the internet, because it might be libelous.

F. Invasion of Privacy

There are a number of different laws that protect the right to privacy in a number of different ways. For example, under the Electronic Communications Privacy Act, a federal statute, it generally is a crime to intercept someone else’s private email message or to look into someone else’s private computer account without appropriate authorization. The fact that you may have the technical ability to do so, or that the other person may not have properly safeguarded his or her account, does not mean that you have authorization. If you do not know for sure whether you have authorization, you probably do not.

Invasion of privacy, like libel, is also a tort, which means that you can also be sued for monetary damages. In addition to the sorts of things prohibited by the Electronic Communications Privacy Act, it can be an invasion of privacy to disclose intensely personal information about another person that that person has chosen not to make public and that the public has no legitimate need or reason to know—for example, the fact that someone has AIDS, if he or she has not revealed that information publicly. Unlike with libel, a statement can be an invasion of privacy even if it is true.       

G. Cyber Bullying

Any behavior, including electronic posting or other communication, that can cause harm, jeopardy, or humiliation to others may constitute invasion of privacy, harassment, or a violation of state laws or university policy on cyber bullying and may result in consequences. Please consult the Dean of Students Office if you have any concerns about such behavior: 617-627-3158.

H. Obscenity, Child Pornography, and Indecency

Under both state and federal law, it is a crime to publish, sell, distribute, display, or, in some cases, merely to possess obscene materials or child pornography. These laws also apply equally to the internet, and a number of people have been prosecuted and convicted for violating them in that context.

The line between what is obscene and what is not is hard to draw with any precision—as one Supreme Court justice said, “I could never succeed in intelligibly” defining obscenity, “[but] I know it when I see it”—but the term basically means hard-core pornography that has no literary, artistic, political, or other socially redeeming value. One reason that it is so hard to define obscenity is that it depends in part on local community standards; what is considered obscene in one community may not be considered obscene in another. That makes it particularly difficult to determine whether materials on the Internet are obscene, since such materials are, in a sense, everywhere, and it is therefore not enough that the materials are legal wherever you are. In one case, the operators of a bulletin board service in California posted materials that were not considered obscene there, but were convicted of violating the obscenity statutes in Tennessee when the materials were downloaded there.

Child pornography is the visual depiction of minors engaged in sexually explicit activity. Unlike obscenity, child pornography is illegal regardless of whether it has any literary, artistic, political, or other socially redeeming value.

Sexually oriented materials that do not constitute either obscenity or child pornography generally are legal. Still, it is illegal in most cases to provide such materials to minors, and displaying or sending such materials to people who do not wish to see them may be a violation of the University’s Sexual Harassment Policy.

I. Hacking, Cracking, and Similar Activities

Under the federal Computer Fraud and Abuse Act, and under a variety of similar other state and federal statutes, it can also be a crime to access or use a computer without authorization, to alter data in a computer without authorization, to transmit computer viruses and “worms” over computer networks, to send multiple and mass letters, and to engage in other such activities that negatively affect the operation of the University’s computer resources. Engaging in such activities can also make you liable for monetary damages to any person who is harmed by your activities. Again, the fact that you may have the technical ability to do any of these things, or that another computer owner may not have properly safeguarded his or her computer, does not mean that you have authorization. If you do not know for sure whether you have authorization, you probably do not.

J. University Policies

Use of University computing resources is also subject to the University’s Student Code of Conduct, including academic integrity, the University’s Sexual Misconduct/Sexual Assault Policy, and all other generally applicable University policies. Please refer to Section III, Tufts University Information Stewardship Policy for Students in Arts and Sciences and Engineering.

K. For More Information

If you have questions about the legality of your use of University computing resources, it is best to ask before proceeding. You can get general information (but not specific legal advice) from the Dean of Students Office: 617-627-3158.

In addition, you can find more information on these and related topics at the following websites:

10 Big Myths About Copyright Explained                                                      

Commonwealth of Massachusetts Cyber Crimes

II. Policies for Tufts Email Accounts and Addresses