Consequentialist Considerations of Intellectual Property Rights in Software and other Digitally Distributable Media

AUTHOR

Kai Kimppa

ABSTRACT

Spinello (2003) points out that intellectual property rights (IPR’s) have received too little attention in the field of information technology ethics from philosophers. The legal scholars (see e.g. Sixth Annual Ethics and Technology Conference Proceedings, various legal publications, including the Yale Law Journal and the Journal of Law and Philosophy) have tackled the problems to a larger degree, but mainly from a more applied point of view rather than approaching the question of what kinds of rights would be right or good. Philosophers ought to contribute more to this discussion. Spinello also points out, that “[i]n light of digital technology it is especially critical to re-examine the underpinnings of the moral legitimacy for intellectual property protection.’ The re-examination of the underpinnings of the moral legitimacy for IPR’s seems to both start from and lead us to somewhat different directions. Spinello seems to start from the current situation rather than a no-IPR’s situation which leads him to advocate a shortened and possibly less stringent IPR protection, labeling a situation of no intellectual protection ‘information anarchy’.

Spinello (2003) claims that if we “accept some version of the Lockean perspective that individuals have a natural entitlement to control the results of their labor” it would transfer over to the immaterial as well as the material results of that labor. Kimppa (2003a) (See also e.g. Long, 1995 and Kinsella, 2001), has approached the question of IPR’s from a Lockean liberalist position and come to quite different conclusions. Since the immaterial is nonrivalrous, the Lockean claim that as much and as good must be left for others, at least in the starting situation, still holds. Thus we need to start from a situation where no IPR’s are granted and consider whether such rights would benefit or worsen the condition of the society or societies. Papers presented by Kimppa (2003a, 2003b) have raised considerations of whether the consequences of such a system would be, in the consequentialist sense, good or not.

In this paper I will go through the main arguments for IPR’s from the consequentialist point of view and show their weaknesses and the main criticisms which the no-IPR’s view has received from the consequentialist camp. I will start by showing that the main utilitarian argument that we should try to maximize the good of the society has been misunderstood by many among both the legal scholars and economists to mean only quantitative good measured in – especially when considering the loss of potential profits if IPR’s were to be abandoned – profit. Not enough attention has been paid to the qualitative aspects of good, of understanding what constitutes good for the members of society and whether it is equally transferable from one person to another.

Then I will turn my attention to the claims that innovation would suffer were we to abandon IPR’s. I will point out, that not all innovations are qualitatively equal in importance for the users. Those innovations that stem from the need of the innovator, rather than the need of the marketing department, rise from concerns of what is needed rather than the concerns of what can be marketed.

After this I will consider that in consequentialist thinking ‘as much good for as many as possible’ the ‘for as many’ seems to have been forgotten. I will first approach the issue of whether a society in which one has lot and others have little is better or worse than a society in which all have some, even if the latter society has less over-all than the first society. Then I will tackle the question of who the current IPR system will benefit. Whether it will benefit the rich or the poor, the corporation or the citizen – with-in societies and in-between them – and whether the so-called ‘trickle down theory’ seems to work or not.

I will also approach the question of whether IPR’s in software and other digitally distributable media indeed grant limited monopolies as claimed by their advocates or actually grant unlimited monopolies, at least for all practical purposes, and what are the consequences of that.

I will point out that verification of the benefits of current IPR’s is very difficult if not impossible and that the original reasoning for them has long since abated. I will argue, that they can’t be upheld for ‘just in case’, since they might promote creativity, if we have no solid ground for the claim and if we have multitude of examples where they clearly inhibit creativity instead of promoting it.

And finally, I will propose alternative solutions rising from Free Software Foundations position and consider gains and losses we would have to face if they were adopted instead of the current laws and practices.

REFERENCES

Kimppa, Kai K. Intellectual Property Rights in Software: Justifiable from a Liberalist Position? – The Free Software Foundations Position in Comparison to John Locke’s Concept of Property. The Sixth Annual Ethics and Technology Conference, Intellectual Property Rights in a Networked World, pp. 143-152, Boston College, June 27-28, 2003(a).

Kimppa, Kai K. Redistribution of power from government to intellectual property rights owners and organizations looking after their interests: Justifiable from a liberalist position? Second Summer School by IFIP WG 9.2, 9.6/11.7, 9.8, Risks and Challenges of the Network Society. 4-8 August 2003(b), Karlstad University, Sweden. Preceedings available at: http://www.cs.kau.se/IFIP-summerschool/preceedings/Kimppa.pdf

Kinsella, N. Stephan. Against Intellectual Property. Journal of Libertarian Studies, Vol. 15, no. 2, Spring 2001:1-53, Ludwig von Mises Institute, 2001. http://www.mises.org/journals/jls/15_2/15_2_1.pdf (Last checked January 10, 2003).

Long, Roderick T. The Libertarian Case Against Intellectual Property Rights. Formulations, Autumn 1995. Libertarian Nation Foundation. Also available at: http://libertariannation.org/a/f31l1.html (last checked January 9, 2003).

Spinello, Richard A. The future of intellectual property. Ethics and Information Technology, 5: 1-16, 2003.

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