the ethics of software intellectual property

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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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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