It is the aim of this paper to consider the moral arguments that support and also those that deny the proposition that intellectual property rights as applied to software have a moral basis. Undeniably ownership rights were first applied to chattels and land and so we begin by considering the moral basis of these rights. We can then consider if these rights make moral sense when they are extended to intellectual phenomenon.
In this paper I am not so much concerned to reach a final judgment as to the moral basis of intellectual property rights in general, but rather seek to offer a more specific treatment of the possible moral basis of intellectual property as applied to computer software. One of the questions encountered when one protects software by copyright and patent is whether this creates a barrier to new invention. There are the costs to society incurred by arrangements to make people pay for a program and the licensing of copies.i Losses are also associated with extensive searches to determine if a produced piece of software has already been protected by existing patents or copyrights. Depending on what is found, one may have to pay significant fees to license a process that has been patented or draft a copyright claim “?in contorted ways to ensure that its claim does not infringe on others.”ii We will proceed with a Lockean and Kantian analysis.
Locke and Kant
Ultimately, despite the emphasis on obligation rooted in a command of God, Locke’s defense of private property for modern liberal secular thinkers really depends on the utilitarian aspect, i.e., private ownership and the attendant rights to use, exclude and alienate, are justified as conducive to the survival and flourishing of the individual and mankind. At the same time there are those who eschew the utilitarian approach for various reasons and prefer to argue a defense of private ownership based on individual autonomy. This is a Kantian approach that stresses the ultimate value of the human individual. On this view private property as an institution is seen as essential to a program whereby one autonomously controls one’s individual destiny. This view has been popularized by libertarians who follow the lead of Robert Nozick.
We go on to distinguish between control rights and income rights – rights that apply to the holding per se, such as the right to use, exclude and alienate and rights that apply to income that flows from holding the legal title. The right to income refers to the right to the economic rent accruing to scarce goods.i Returning to the utilitarian issues and concerns for individual autonomy, which form the moral basis of ownership, we have seen that they offer us powerful reasons for acknowledging a moral point to the existence of the institution of ownership as it applies to land and chattels. As we have repeated ownership includes the most important rights to use, exclude and alienate. However, the peculiarity of information and information technology is that there is really little reason to protect rights to use, exclude and alienate. I still retain capacities to perform these activities even if others have access and use the same information or information technology.. This is not the case with physical property. Intellectual property actually protects income or right to potential income that is maintained through legal restrictions on the reproduction of the product or the dissemination of information. Once information and information technology are made subject to intellectual property rights, one creates a unique form of ownership that legally restricts the transferee by ensuring the he/she receives a title that falls short of full ownership as is the case with physical things. Unlike ownership of physical objects, the recipient is prevented from alienating the product by selling or freely disseminating. This ensures maximum profitability for the originator in so far as each recipient of the information or information technology must represent a monetary return to the originator.
But these realities also throw doubt on the possibility of using the moral issue of autonomy as a defense of intellectual property. For example, intellectual property would therefore contravene the Nozickian understanding of ownership because it interferes with the freedom to exercise the right of transfer. In suppressing the individual’s freedom we are treating the individual as a means to other ends either utilitarian or the more narrow objective of rewarding the original creator. On this interpretation, intellectual property restrictions are inconsistent with Kantian principles. It follows that the principle of autonomy and issues of personal integrity cannot be consistently applied to offer a coherent moral defense of intellectual property. This entails a moral defense that relies on consequentialism.
We observe that intellectual property rights have created apparent monopolistic conditions associated with higher prices and unconstrained profits are inconsistent with the utilitarian consequentialism, which favors greater availability through lower prices and expanded volume. This reality is becoming evident in the recent spate of course cases based on Microsoft’s alleged monopolistic practices.
The final issue is whether we can mount a valid utilitarian defense of intellectual property despite problems associated with excessive profit taking. Ian Maitland has defended the use of patents in the prescription drug industry arguing that innovative drugs and the plethora of new drugs would not be available if not for patent protection because industry would not be prepared to finance risky, expensive research and development without the possibility of reaping healthy profits. However, as Maitland states, drug companies spend more on research and development than any other industry.i Research and development in the software industry are less expensive and time consuming etc. The need for massive industrial investment does not necessarily apply for the production of new and innovative software. It is well known that the home computer industry got its start not through massive investment from industry and industrial giants like IBM but through the activities of amateur hobbyists, who met in clubs such as the Homebrew Computer Club in Silicon Valley.ii In point of fact some see copyright and patent law as constraints on the exercise of creative talent, because software engineers are precluded from redeveloping, improving, disseminating, or sharing software that has been copyrighted or patented. In fact, innovative software would probably continue to be produced regardless of the possibility of creating a “wildly profitable” product because software research does not require that that massive sunk costs be covered. And in any case, for many talented individuals, the creation of software is something that it is inherently enjoyable and does not require the same monetary motivation.
R. M. Stallman, ‘GNU manifesto,’ in M. D. Ermann & M. S. Shauf (eds) Computers, Ethics and Society (Oxford: Oxford University Press, 2003): 153-161.
D. G. Johnson, Computer Ethics 3rd Edition (New Jersey: Prentice Hall, 2001): 143.
R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
Bob Cringely, The Triumph of the Nerds: Impressing their Friends, Volume 1, Ambrose Videos, 1996, recounts the activities of the Homebrew Computer Club in Silicon Valley, which witnessed the first demonstration of the personal computer.