the ethics of software intellectual property
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Kevin Gunn – The Ethics of Software Intellectual Property
The Ethics of Software Intellectual Property
Kevin Gunn
PHIL 3013 – Ethics and the Professions
Term Paper
4/3/2012
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Kevin Gunn – The Ethics of Software Intellectual Property
SUMMARY
Main Question: Should software source code and algorithms be considered intellectual property?
Source #1: Richard Stallman proposes that software should not be considered intellectual
property – he is the founder of the Free Software Foundation and believes all software should be
open-source.
Source #2: Deborah Johnson proposes that software should be considered intellectual property –
as such, owners should be able to restrict their software and people should respect the laws that
protect owners.
Proposed Answer: I propose that Richard Stallman is correct in his assertion that all software
should be open-source.
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With the emergence of computers and other information technology in the past fifty
years, a new branch of Ethics was created to explore the ethical issues and implications that new
technology was quickly generating. In 1976, Walter Maner coined the term “Computer Ethics”
for this new branch of Ethics, after noticing that problems considered in his Medical Ethics
course became more complicated when computers were involved. This new field was defined as
studying ethical problems “aggravated, transformed or created by computer technology,”
(Stanford…). One such problem that has arisen is the issue of intellectual property rights in
reference to software ownership; namely, the question is, “Should software source code and
algorithms be considered intellectual property?” One view, supported by Richard Stallman,
states that software should be free – not in terms of price, but in terms of information. Stallman
believes that all information should be free and as such that all software (and everything that
encompasses it) should be available for copying, studying, and modifying by anyone. Other
opposing views, supported by Deborah Johnson, hold that companies would not invest time and
money in developing software unless they could get that investment back in the form of software
sales or licensing fees. Many companies claim to lose billions of dollars in sales to illegal
duplication of software, so Johnson believes that all software should be distributed under
restrictive licenses, and considered intellectual property of the company who paid for it. In this
essay we will show that the more ethical and logical view to take on this matter is Stallman’s
view: that software source code and algorithms should be free information – modifiable by
anyone.
It is helpful to begin with a short summation on software intellectual property and what it
entails, before launching into jargon-filled explanations by field experts. The jargon used here is,
luckily, not that hard to understand. Intellectual property (from herein referred to as IP) is
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broadly defined as “a term referring to a number of distinct creations of the mind for which a set
of exclusive rights are recognized under corresponding fields of law,” (“Intellectual Property”).
Under law, owners of IP are granted exclusive rights to intangible assets such as discoveries and
inventions, musical, literary, or artistic works, or certain phrases, symbols, or designs. These
rights usually depend on the type of intellectual property: copyright, trademark, patent, or trade
secret. The types of IP we will be concerned with – those for which software pertains to are:
patents, copyrights, and trade secrets. A copyright gives the creator of a original work exclusive
rights to it for a certain period of time – generally, it gives the creator the right to be credited for
the work, decide who may modify their work, use their work, and who may financially benefit
from it (“Copyright”). A patent is similar, but is a set of legal rights granted to an inventor in
exchange for revealing their invention, usually for a period of twenty years (“Patent”). A trade
secret is a design, process, formula, or other information that allows a business to secure an
advantage over their competitors – for example, the recipe for Coca-Cola is a trade secret
(“Trade Secret”). The main aspect of all three that we are concerned with is the fact that, in each
case, the Law allows exclusive monopoly on use of the item in question (“Intellectual Property”).
Narrowing the focus to software, there are four aspects that are considered intellectual
property and so can be legally owned by individuals: the source code, object code, algorithm,
and ‘look and feel’ of the software. Source code is programming language that is written by a
programmer in a ‘high-level’ language such as Java or C. Object code is a machine-level
translation of the source code – the next step down from the high-level language a human used to
write the program. An algorithm is the sequence of commands that the machine uses to execute
the object code, or in other words, an “effective method expressed as a finite list of well-defined
instructions for calculating a function,” (“Algorithm”). The ‘Look and Feel’ of a program refers
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to the way the program appears on the screen and the interface it uses to interact with users
(Stanford…). Another useful term is proprietary software; this is software that is licensed, under
the exclusive rights of the copyright holder, for use but may not be modified, reverse-engineered,
or redistributed. Proprietary software is the opposite of free, or ‘open-source’, software
(Stanford…). These terms will greatly aid in the layman’s understanding of the arguments that
follow.
Richard Stallman is the founder of the Free Software Foundation, “a nonprofit with a
worldwide mission to promote computer user freedom and to defend the rights of all free
software users,” (Free Software…). In his essay titled Why Software Should Be Free, he goes on
to describe the effects of having software owners, which include: obstruction of the use of,
custom adaptation, and development of software, as well as damage to overall social cohesion.
Having software owners, he concludes, lead to programs that are more expensive to create and
distribute, as well as less efficient to use and less useful to the user.
Stallman begins his analysis of the problem of software ownership by stating his own
question, “Should development of software be linked with having owners to restrict the use of
it?” To answer this question, Stallman states that we have to independently judge the effect on
society that developing software has and then compare it to the effect of restricting its use. If one
of these activities is more beneficial to society than the other, than everyone would be better off
if we only did that activity. As Stallman himself puts it, “…if restricting the distribution of a
program already developed is harmful to society overall, then an ethical software developer will
reject the option of doing so.” To illustrate this argument, Stallman applies it to road
construction: suppose, for example, that the government decides to fund all roads by having
tollbooths at every corner. In theory, this system could work great – it creates a large incentive to
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build roads, and causes users to pay directly for the roads that they use and nothing else. In
effect, though, this policy would merely degrade the quality of our roads; a toll road is
comparably more expensive than a regular road to construct and run, as well as less efficient to
use. Use of roads, once they are built, offer society as a whole much more benefit if they are free
to use, so we would be much better off seeking alternate means of funding. The logic of
Stallman’s argument here is basically that there is always more than one solution to a problem.
In the case of road construction – there are obviously more options than just toll road or no road.
Stallman holds that the same applies to software ownership; there are more than just the two
options of proprietary software or no software at all.
Moving on from the construction analogy, Stallman described the effects that restricting
software (or in other words, having owners) has on society. The first effect is simply impeding
the general use of a program – usually through the means of licensing fees. These are meant to
defray the cost of development, but Stallman holds that they are merely a disincentive to use the
software. Even if the program is very useful, less people will use it because they either can’t
afford it or don’t want to pay for it. This causes harm to society because every time that someone
chooses not to use the program – nobody benefits, so society as a whole is harmed. After all,
once a program is created, copying it costs little or nothing for the developer (especially in
today’s era of high speed downloads and internet content distribution), so why not allow society
to benefit from the use of the program?
The second effect of restricting software is that it damages social cohesion. For example,
consider that your neighbor asks for a copy of a certain software program that you own. When
you bought the software, you signed a license agreement, stating that you would not redistribute
the software. Though we were taught since Kindergarten to share, in this case it is not allowed,
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by Law. Many people forgo this ethical dilemma and just share their software (or other media,
for that matter) regardless of what the law says; this is very apparent with the rise of Napster, Bit
Torrent, and other electronic media sharing services in the past two decades. Others, however,
are caught in the middle of the ethical dilemma of being a good neighbor or following software
license laws. Others, still, will share their software - but end up feeling guilty about it; they feel
like they must break laws to be a good neighbor, but still have respect for the Law deep down.
These people may end up feeling like being a good neighbor is shameful or wrong because of
this, and therefore suffer a “kind of psychosocial harm,” (Stallman). According to Stallman, this
situation leads to damage to social cohesion, as it causes people to question the importance of
helping others – such as their neighbors or friends. Programmers themselves can also suffer the
same kind of “psychosocial harm” in knowing that many people will be denied the right to use
their software if it is proprietary (Stallman). This can lead to programmers who are highly
cynical, and lead to an overall decrease in productivity. It is for these reasons that Stallman
encourages people to decide for themselves that software “licenses and laws have no moral
force.”
Thirdly, Stallman describes in his essay how restricting software causes an obstruction of
custom adaptation of software. Stallman cites a particular personal experience, back in his days
working at MIT’s Artificial Intelligence laboratories, which made him convinced that proprietary
software obstructs custom adaptation. The situation involved a printer that was donated to their
lab by the company Xerox. The printer ran on software that was free, and so Stallman added a
feature that notified a user when their print job was done, since the printer was kept on a floor
separate from their computer. This modification was then scaled up to allow the system
administrator to be notified when a paper jam occurred or any other problems. A few months
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later, Xerox gave their lab another newer printer; a laser printer, one of the first of its kind. This
printer, however, came with proprietary software that ran all of its functionality. There was no
way for them to modify this software, so they never really used the newer, better printer. In other
words, Stallman and his MIT colleagues were just as capable as Xerox programmers in
modifying the source code to facilitate the features they needed in their software, but the
problems never got fixed because Xerox’s proprietary software prevented it! As most
technology-savvy people know, customer service can be pretty bad when it comes to bugs in
software – most companies don’t care to release fixes as it may not be “cost-efficient.” I have
personally experienced this phenomena – it is extremely frustrating to know that you are capable
of fixing a problem but the manufacturer has prevented you from doing so. It plays into the idea
of a disposable society, where companies build products that are meant to break easily or become
obsolete so you have to give up more money for the newest model. This situation clearly
underlines Stallman’s description of how restricting software causes obstruction of custom
adaptation of software, and I can see why it really stuck with him through all of these years.
Lastly, Stallman discusses the effect that software restriction has on software
development. Basically, by preventing programmers from viewing a program’s source-code, you
are stemming the evolutionary flow of progress that encompasses the development of software.
In my Software Engineering class, we have been learning methods that revolve around the re-use
and restructuring of code from other programmer’s software. The value of reusing code has been
taught to me throughout my career as a Computer Engineering student by all of my professors.
As Stallman eloquently puts it in his essay, “In any intellectual field, one can reach greater
heights by standing on the shoulders of others. But that is no longer generally allowed in the
software field – you can only stand on the shoulders of people in your own company.” This is the
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sad truth of software intellectual property law. This policy not only stems the flow of process in
the field of programming, but also affects other fields - most notably Science. Owning an
algorithm is a very good example of this. A person can own a patent on the use of a specific
algorithm, which “effectively removes parts of mathematics from the public domain, and thereby
threaten to cripple science,” (Stanford…). Not only that, but anyone who wants to write a new
software program must make sure that their code does not violate anyone else’s patents; this can
be a very costly, time-consuming process. The result of this is that only very large corporations
can afford to do this search, effectively eliminating small companies from the picture. This, in
effect, stifles “competition and decrease[s] the variety of programs available to society,”
(Stanford…). Restriction of source code will also affect education of programming students; I
can attest that it is extremely hard, if not impossible, to learn how to program effectively without
looking at software source code. Clearly, Stallman is correct in his assessment that proprietary
software obstructs the software development process.
On the other side of the issue, holding that software ownership should be restricted, is
Deborah Johnson. Dr Johnson is a distinguished Professor of Applied Ethics at University of
Virginia. She is author of the book Computer Ethics, the first widely accepted textbook in the
field, and for over two decades has been one of the eminent researchers in the field (Stanford…).
In her article titled Intellectual Property Rights and Computer Software, Johnson directly cites –
and disagrees with - the ideas put forward by Stallman.
Johnson begins by laying out what she believes to be the strongest arguments put forth by
Stallman and others for the right to software copying, then attacking them one by one. The main
issue put forth by Stallman, that Johnson attacks, is his example about copying software and
giving it to your neighbor, or more specifically, the “moral permissibility of individual copying,”
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(Johnson). Johnson says that Stallman’s argument for copying has two basic claims: that
software IP Laws are not good, and that “not making a copy of a piece of software actually does
some harm.” She comes to the conclusion in her article that it is more harmful to deprive
someone of their legal rights, and that making copies of proprietary software is a prima facie
wrong.
Johnson refutes Stallman’s claim that software IP Laws are bad by simply recognizing
that although our country’s IP Law is not the best, it is “roughly just.” She does not feel that it is
completely inappropriate for software, but does concede that it could be improved. Johnson then
goes on to explain that because this IP system is “roughly just,” we have a prima facie obligation
to follow the Laws that support it. The only time that this obligation can be overridden is in
special circumstances, such as when following the law would cause more harm that good. So
certainly it can be said, from Johnsons perspective, that there is never such a case that involves
copying software; the only situation would be when some serious danger could be avoided by
making an illegal copy of proprietary software. This does, admittedly, seem like an unlikely
situation. Since we have this prima facie obligation to obey “roughly just” laws, Johnson
concludes that Stallman’s second premise must provide a reason that serious enough to justify
disobeying the Law.
Johnson argues then that there is never a case when Stallman’s second premise, that “not
making a copy of a piece of software actually does some harm,” will provide a serious enough
reason for actually breaking intellectual property Law. Stallman’s main premise in his argument
for copying software is that the magnitude of the harm caused to the copyright holder is less than
the harm caused to the person who does not get to use the software. Johnson retorts that this is
simply not the case, “…the harm referred to does not seem of the kind to counterbalance the
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effects of a relatively just system of property rights.” Johnson boils it down to a simple case; in
her mind, depriving the software owner of IP rights causes more harm than someone who simply
wants to use the software to make life easier having to go without it. She illustrates this position
with an interesting analogy: renting a swimming pool.
Johnson asks us to imagine a situation where she is renting a swimming pool to people to
use by the hour. Imagine then, that you have figured out a way to break in and use it on days
when she is not around. The actual act of you swimming is not wrong, and you are not causing
the owner any physical or monetary harm by breaking in and using the pool. You are, however,
harming the owner by using their property without permission, Johnson holds. It is not enough to
justify your actions by simply saying use of the pool made your life easier, or that it would have
been selfish not to use that knowledge to help your friends or neighbors out. The only situation
where you would be justified in breaking in would be when not following the Law would cause
more harm the following it; for example, if you saw someone drowning and had to break in to
save them. Johnson sees “no moral difference between breaking into the pool and making a copy
of a proprietary piece of software.” Both of these acts effectively break personal property Law,
as well as the rights of the owners.
Johnson concludes her article by conceding that private property laws do prevent people
from being altruistic as Stallman states, but wonders why Stallman and his colleagues chose to
focus on software IP Law in particular. In her opinion, the only way to change things would be a
top-down reform focusing on the whole system, rather than just simply software IP. To Johnson,
there are much more “menacing” aspects of intellectual property law that should be addressed,
such as private ownership of natural resources. In other words, if the system is broken – we need
to fix the whole system, not just specific parts of it. She also asks us to consider thinking of small
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software companies before we copy – companies who may be “squeezed out of business by
customers who would buy one copy [of their software] and make others instead of buying more,”
(Johnson).
The statements made by Johnson in reference to Stallman seem to already have garnered
a response in his previously discussed essay. Stallman simply states that, “[My] analysis also
addresses the simple counterargument sometimes made that ‘the benefit to the neighbor of giving
him or her a copy of a program in cancelled by the harm done to the owner.’ This
counterargument assumes that the harm and the benefit are equal in magnitude. [My] analysis
involves comparing these magnitudes, and shows that the benefit is much greater.”
Stallman’s analysis basically asserts that the magnitude is greater because it is more harmful to
restrict society from using a program than to just allow it. Having a more altruistic society with
people that are more than willing to share with their neighbors and friends is, in his mind, more
beneficial than controlling source code for monetary gains. The disagreement between Johnson
and Stallman is pretty simple: Johnson argues that sharing software harms the owner more than it
benefits society, whereas Stallman holds the opposite – that the benefit to society outweighs the
harm done to the owner. Stallman simply does not accept that harm to one single person or entity
could ever outweigh harm done to society as a whole.
One could continue this argument forever – weighing harm done to a owner or to society
is very relative; it depends on who the judge is. It is hard to accept that any amount of harm done
to the owner of a software program could compare to harm done to society as a whole. A good
example of this whole situation is the program Microsoft Word. Microsoft has been selling this
program for a very long time – they have undoubtedly covered the initial cost of programming
and upkeep on this product. There is no denying the usefulness of this product as well –
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everybody I know has a copy of this software on their computer. Would it not be extremely
beneficial to society, then, to just allow free use of this program? Stallman is correct in his
assertion here that the magnitude of benefit to society outweighs the harm to the owner.
A clear retort to this thought process, though, is still simply from a monetary standpoint.
Sure, allowing free use of Word would be very beneficial to society - that is no question. But
how much money would Microsoft and their stockholders lose if they did not get money from
license fees and sales of Word? It is hard to say exactly without doing in-depth business analysis.
What can be said though, from my personal experience, is that most people are already using this
software without paying through use of ‘cracked’ software (software where restrictions have
been removed by a third party). This fact, combined with the overall benefit to society that
allowing free use would bring, really goes to show that money may not be as big of a issue as
people make it out to be. As was said previously, though, this is a recursive argument; both sides
could go on all day weighing the benefits against harm to either side. It seems that may be the
reason that this is such an interesting ethical dilemma: both sides have a very good point!
For some programmers, though, it is not all about the money. As per the tollbooth
analogy Stallman used in his essay, there are more than just two solutions to a problem; so in
other words, programmers will always be able to find other ways to fund their software projects.
For example, look at highly successful open-source projects like Mozilla Firefox. Firefox was
completely programmed by a community consisting of volunteers and employees of the
nonprofit corporation Mozilla, and is one of the most widely used, secure, and successful web
browsers available (Get to Know…). Firefox is truly a testament to Stallman’s ideas and the
open-source movement as a whole - and there are countless other examples just like it out there.
Stallman himself would even argue that there are many other reasons that people would program,
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besides just money. There are university research grants, for example, that allow people to do
research and better the field as a whole; some even program for fun, or as a hobby. I personally
know a couple people who contribute source code to open-source projects simply because they
enjoy bettering their skills as a programmer. I am currently working on an open-source project
myself in my Software Engineering course, so in many ways I can personally attest to the
accuracy of this. These facts go against the typical argument proposed by Johnson, and many
others, that people would not invest time, money, or energy into programming unless they could
get the investment back in the form of license fees or sales. Firefox is completely free to use as
well, as is most open-source software, which especially illustrates the fact that Johnson’s view is
wrong.
It is clear to see the logic in both views on software intellectual property expressed in this
essay. Stallman believes that we should simply not restrict the use of software, because it is just
like the road analogy: why not allow everyone to use something that is already built? After all, if
money is the problem, there is always a way to get things paid for. Johnson simply retorts that
we should restrict use of software because our current system of intellectual property law is
“roughly just,” and because of this we have a prima facie obligation to follow these laws – unless
there is a serious reason not to. Stallman’s retort to Johnson says it all, though; the assumption
that the magnitude of harm to the owner is larger than the harm done to society is just not
correct. Software should not be considered intellectual property; restricting software use simply
does more harm than good to our society as a whole.
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BIBLIOGRAPHY
Stanford Encyclopedia of Philosophy. Computer and Information Ethics. Last updated 10/23/2008. Last visited 4/3/2012. <plato.stanford.edu/entries/ethics-computer>
Stallman, Richard. Why Software Should Be Free. Last Updated 9/20/2011. Last visited 4/3/2012. <http://www.gnu.org/philosophy/shouldbefree.html>
Johnson, Deborah C. Intellectual Property Rights and Computer Software. Last visited 4/3/2012. <www.austincc.edu/njacobs/1370_Ethics/Ethics_Articles/Intellectual_Property_Rights.pdf> Reprinted from Computer Ethics. Prentice Hall, 1994. 70-79.
Free Software Foundation. Last visited 4/3/2012. <http://www.fsf.org/about>
“Algorithm.” Wikipedia. Last visited 4/3/2012. <en.wikipedia.org/wiki/Algorithm>
“Intellectual Property.” Wikipedia. Last visited 4/3/2012. <en.wikipedia.org/wiki/Intellectual_property>
“Copyright.” Wikipedia. Last visited 4/3/2012. <en.wikipedia.org/wiki/Copyright>
“Patent.” Wikipedia. Last visited 4/3/2012. <en.wikipedia.org/wiki/Algorithm>
“Trade Secret.” Wikipedia. Last visited 4/3/2012. <en.wikipedia.org/wiki/Trade_Secret>
Get to Know Mozilla. Last visited 4/3/2012. <www.mozilla.org/en-US/about/>
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