Computers, Information Technology, the Internet, Ethics, Society and Human Values

Philip Pecorino, Ph.D.

Queensborough Community College,  CUNY

Chapter 5 Intellectual Property

Presentation of  Issues

For Freedom of Information in all forms and against Copyright, Patent, and Trade Secret Protections for Software and programs and Digital Information and Media

There are those who argue against the notion that software should be considered as intellectual property  to be owned by anyone and those who argue that all such creations had ought to be freely available to all as they are ideas.

John Perry Barlow argues that information and all products of the intellect are more like verbs and not  nouns or things. Information and information processing are processes that are constantly changing and need to be free.

Selling Wine Without Bottles  by John Perry Barlow

Coming into the Country  John Perry Barlow

READ: The Economy of Ideas: Rethinking Property in the Digital Age  John Perry Barlow  A framework for rethinking patents and copyrights in the Digital Age (Everything you know about intellectual property is wrong) "copyright is dead."

READ: Why Software Should Be Free: A Free Software Foundation Paper – Richard Stallman

Anarchism Triumphant:  Free Software and the Death of Copyright  by Eben Moglen

A Plea for Casual Copying – Helen Nissenbaum

Against User Interface Copyright – The League for Programming Freedom

Against Software Patents – The League for Programming Freedom  February 1991 (also in Communications of the ACM, January 1992). This paper argues that patents are flatly bad for development of software and that software should not be patentable.

For Copyright, Patent, and Trade Secret Protections for Software and programs and Digital Information and Media

There are those who argue that software should be considered as intellectual property and as such subject to the laws regarding property and the right of ownership to those who make or invent or create such properties.

Look into  Software as intellectual property

READ: Debunking the software patent myths by Paul Heckel, Communications of the ACM, June 1992. This paper was written as a rebuttal to the paper above Against Software Patents

The Virtues of Software Ownership – David H. Carey

Softward Ownership and Natural Rights Volkman, R.

  Summary by Kimberly Beuther (CUNY, 2006)

“Software Ownership and Natural Rights”- Richard Volkman       

         In “Software Ownership and Natural Rights”, Volkman explains how the pursuit of ownership is a natural right, as a part of a person’s right to life. Volkman takes on Richard Stallman who is a proponent of free software and insists that ownership of software has a negative effect on society. In this article, Volkman addresses Stallman’s idea that signing a software agreement forces the signer to betray their neighbor, thus having a negative effect on the signer. But Volkman questions the effects of free software on the programmer. What is the programmer entitled to in his right to life?
       Volkman indicates that a programmer who would write free software may have to pursue a different avenue in life, if he cannot make a fair living writing software. According to Volkman, it is the programmer’s right to request compensation for his work. The programmer must also have the right to request that his software not be distributed without his consent. Volkman indicates that the programmers requests are well within his rights and do not infringe on anyone else’s rights, as they may choose to have someone else write the code for them.
      Others may feel that a programmer has no claim to resources that do not belong to him to create his product, however, Volkman counters that by indicating that it is the programmer’s right to use any resource, which no one else has claimed under the Lockean Proviso. Since the programmer has joined his labor with the resource, it is his to do with as he sees fit. If the programmer now wishes that this property not be distributed, then it is within his rights to say so.
       It is also Volkman’s view that while an idea cannot be owned, the programmer has the right not to share his idea with anyone. It is also within his right that if he does share his idea with another, then he may request that the person with whom he shares the idea, agree to the programmer’s terms. The programmer is not violating anyone else’s rights in requesting this, because the other person has the right to gather the idea on their own. On the other hand, if the person with which the programmer shares the idea, or the software, agrees to the terms, and then violates them by sharing the software with a neighbor, then the person has infringed on the programmer’s rights. He has also in effect broken a promise made to the programmer.
        In contrast to what many people believe to be free software, Volkman indicates that those who create this free software are often given credit among themselves. So Volkman questions why a programmer should not be able to request payment instead of credit for his work. He also believes that the best way to get good software is to allow both programmers who wish to get paid with physical money as well as those who with to have their name remembered.
      In conclusion, Volkman believes that software ownership does not infringe on anyone else’s right to life, and if a programmer chooses to be paid for his work, then this is well within his rights. While Stallman believes that requiring people to sign software agreements makes them bad neighbors, Volkman believes that a person’s desire to share should not be at the expense of the creator to whom the promise was made. 
Volkman, Richard, Software Ownership and Natural Rights

Digital Millennium Copyright Act, 1998

A Politics of Intellectual Property: Environmentalism For the Net?   James Boyle

Deborah Johnson has been thinking about the motion of  software as intellectual property for some time. In any early work Proprietary Rights in Computer Software: Individual and Policy Issues – she held that:

The aims and strategies of copyright and patent law seem right on target in seeking to create an environment in which invention can flourish. In this respect they are not bad laws. But while their aims are right, they seem to lack the conceptual tools to handle the issues posed by computer technology. It appears that copyright law and patent law will have to be modified or abandoned for computer-related invention.....

Whatever changes one supports, it seems clear that we must keep in mind that our ends should be the same as those of the patent and copyright systems, to create an environment in which creativity and invention are encouraged and facilitated.

In her work Computer Ethics, 3rd ed (Prentice Hall: Upper Saddle River, NJ, 2001) she further developed her argument and there are protections for inventors and they are found in laws providing for copyright, patents and trade secrets.  These may be applied to software but the reasoning for it is to be clarified.  There is a right to property that is founded upon reasoning using principles of natural law and utility.  Does this extend over into the area of intellectual property?  No argument leads to the conclusion that Intellectual Property must be treated as property as physical property is treated.  If intellectual property is to be treated as property in which people have rights to it then that would be the result of a social action.  Intellectual Property is property as a social creation.  Social policy makers and lawyers and judges have produced this result.  Using utility as principle and addressing utilitarian concerns there are advantages in so deeming intellectual property as property and in particular software. Making intellectual property and investing its creators with the exclusive right to hold that property will in the long run lead to more acts of creation and that in turn will advance the general resources of society and improve the general welfare so that the interests of a great number f people are better served by having intellectual property recognized under law as property .  As such software is a new species of intellectual property basically because the law now recognizes it as such reflecting the value placed on its existence and development by society.  To copy software that is so protected is a violation of law and the act can bring penalties under law.  The action of making copies or unauthorized use of protected software is morally incorrect according to Johnson because it is a violation of law.  Laws are not to be violated without good reason and in the case of copyright laws and software with the possible exception of extreme circumstances such as protecting human life such unauthorized copying or use is not legally justified and so doing so is not morally correct.   Wholesale acts of copying or routine copying are not acts of civil disobedience as much as they are criminal acts, unjustified and counter to the prevailing social value of protecting invention and creation. Civil disobedience is justified morally when it would be immoral to obey a law.  This is not the case with copyright and patent law.  Making copies and unauthorized use of protected software is wrong because it harms those who have the property right to it, the legal right to possess it and to give it or sell it to others.  Disobeying this law will not lead to more utility in the long run than obeying it for mass disobedience and theft of property is thought to discourage the creation of such property and thus diminishes the general welfare.

Summary Based on Computer Ethics by Deborah Johnson – Chapter 6 Property Rights In Computer Software (Kimberly Beuther CUNY 2006)
      In her book, Computer Ethics, Deborah Johnson explains both sides of the arguments for and against software ownership from a natural rights view, and two similar sides of the consequentialist view. She indicates that there are proponents for software ownership based upon the natural rights theory that the fruits of someone’s labor cannot be taken by another. If a person produces something, and another takes what they have created, then they are essentially made into slaves. Johnson believes that though this argument may sound fair, the argument is indeed flawed. Johnson believes it is possible to have a society in which no one owns the products of their labor. She believes that as long as no one has ownership, then it is indeed possible for a society such as this to be fair. It can also be said that intellectual property cannot actually be taken, if someone creates a song, and another person hears it, the writer of the song has not in effect lost the song, it is still theirs, but another person can have it as well. This she believes is the same in the case of software, though others can copy it, the inventor will still own it. While it is possible to take physical property, it is clearly not the same in the case of intellectual property. Johnson also explains that the creator of software does not want to just own it, they also want to be able to sell it, this she says is an economic issue, and economic rights are social issues, not moral issues.
         On the other side of the natural rights view, are those that are against the ownership of software. Johnson states that there are those who believe that software programs cannot be owned, because it is possible for the steps taken in the program to be performed mentally. In allowing the software to be owned, it is possible that they are allowing for a mental process to be owned as well. This would infringe on a persons freedom of thought. Johnson believes that while this is not a pertinent argument today, it could come into play somewhere in the future.
            Johnson explains that the consequentialist believes that not being able to own software will create an environment where people will lose the desire to create. They believe that ownership and the monetary gain from it, is the reward for innovation, without it there would be no reason for people to want to create software. However, Johnson believes that there are many people who find reward for innovation through credit for their accomplishments. There are others who use a shareware system where they create free software that can be used, and the user may, on their own accord, pay a fee.  There are also others that believe that a system where software is free and provided by manufacturers of hardware. Johnson says that while none of these alternatives are either better or worse, there are alternatives to ownership that still allows for innovation. While the latter argument was concerning the bad consequences that can occur from not having ownership rights, Johnson also addresses the good consequences of ownership. They are that with patent, copyright and trade secret laws, innovation and creativity will be cultivated. They believe that these rights will allow creators to introduce their creations into the public arena without fear. However, Johnson points out that the copyright laws should not be used to inhibit further creation, and that there is essential basic scientific and technological information that should never be owned.  
Johnson, Deborah G. 2001. “Property Rights In Computer Software” pp 137-167 in Computer Ethics Third Edition. Upper Saddle River NJ; Prentice Hall

Advances in computer technologies and access to them and to information systems and digital information in all forms will continue to present the issue of Intellectual Property rights for further consideration.  Widespread disregard for intellectual property rights will continue to force reconsideration of the entire notion of intellectual property rights and perhaps to property itself.

Laws governing Intellectual Property Rights in the age of cyberspace, information in digital form, and the electronic technologies will need to be reexamined and reformed as part of the process that is transforming many social institutions being impacted by computer technologies.  Law is only one such an institution.  More on this in a latter chapter on social changes being wrought be the advancing of the computer technologies.

Suggested Readings:

The Ownership of Ideas in Computing Software – John W. Snapper

Magna Carta for the Knowledge Age  

The Future for Intellectual Property Rights

A Manifesto on WIPO and the Future of Intellectual Property    James Boyle Duke L. & Tech. Rev. 0009 (2004)   In this Manifesto, Professor Boyle claims that there are systematic errors in contemporary intellectual property policy and that WIPO has an important role in helping to correct them.           Summary by Kimberly Beuther (CUNY, 2006)

“Manifesto on WIPO and the Future of Intellectual Property” by James Boyle

     In Boyle’s Manifesto, he argues that while it is necessary to have intellectual property rights, they cannot be so great as to prohibit people and nations from accessing valuable information. The patent and copyright laws exist as a way to protect and reward the inventor or innovator. However, according to Boyle, these intellectual property rights have stifled innovation and denied many countries and people access to technology, education and culture. WIPO (World Intellectual Property Organization) is at the center of this argument. Boyle feels that WIPO should be concerned with promoting innovation and access to technology in developing countries, instead of imposing a “one size fits all” policy concerning intellectual property rights. Boyle insists that the current model, which makes an attempt to apply the strongest protection of intellectual property rights, is unfair, and instead of encouraging innovation is prohibiting it.
     Boyle pays particular attention to the idea that WIPO is at odds with the Internet in that it is attempting to restrict a medium which was originally created to be an open, democratic, arena that can be accessed from anywhere in the world. It is important for WIPO to realize that the copyright laws that have existed all along were meant to protect companies from their competitors, but when applying them to the Internet, these laws are taking on the individual. By imposing intellectual property rights on the Internet, in an attempt to curtail illicit copying, WIPO may keep many people from accessing educational materials, and information. These laws are putting ideas and thoughts in locked boxes, and calling them property, of which no one can have ownership.  
     While the goal of intellectual property rights may be to foster innovation, there have been many who have suggested there are alternatives to these rights that have worked for example with creators of open source software. Many of these people, who have created open source software, do so under the GPL (General Public License). The GPL has its own terms which the creators and users of open source software must agree to. WIPO, however, has turned a deaf ear to suggestions that a system like this can work, and have refused to adapt anything but a business model for their intellectual property rights.
      Boyle believes that there are a few ways that WIPO can create an environment of innovation by providing a balance between protected rights, and public domain. It is necessary for WIPO to accept that developing countries cannot participate in many technologies when they have to adopt such strong intellectual property laws, since WIPO is supposed to promote innovation in these countries, there needs to be standards that are attainable for them. WIPO also needs to see that the old copyright laws cannot apply to the Internet, in attempts to stop a few criminals; WIPO has imposed laws that are too restrictive for a medium such as the Internet. The Internet was created and is able to foster innovation, give access to education, and promote intellectual pursuits, all of which WIPO is supposed to embody. Finally, Boyle believes that WIPO should be open to alternative ways to promote innovation, such as the GPL, where such strong intellectual property rights are not necessary to encourage creativity.
      In conclusion, WIPO is an organization which is supposed to foster innovation both in developed and developing nations; however, their use of such strong intellectual property laws has actually worked against what they have set out to do. While it is true that there needs to be copyright, patent and intellectual property laws, they cannot be the same for mediums like the Internet, whose intent is to be a free source of information, education, and cultural awareness for everyone all over the world. Instead of WIPO promoting this, they are at odds with the Internet and the public is being locked out of accessing information for fear that they may download, copy, and sell it.  
Boyle, James, Manifesto on WIPO and the Future of Intellectual Property, 2004

The Moral Issues: Applying Ethical Principles and the Dialectical Process

In approaching the questions, issues, problems and dilemmas posed by the situations presented by developments in computer technologies there is a need to analyze the situation and identify the key elements and values that may be involved and the ethical principles that can be brought to bear.  An argument needs to be developed in support of the position that is to be advanced as the preferred position on the moral question.  That position is then examined by others who hold different values or hold the same values in a different order and who would apply ethical principles in a different manner, rejecting one or another for reasons which should be given.  The process continues until there are enough people who think that one position is the best of the alternatives.  Given the nature of the original problem or question and the size of the populace who hold the one position of the majority there may be social policies or even legislation that would result.


The values held by many people is that property ought to be respected.  Following from this it is thought to be very important that people be permitted personal property.  Personal property is needed for both survival and for the well being and development of individuals.  Property held by families is need for the existence and wellbeing of families.  Resources are needed for the propagation of the species and access and control over them is thus necessary.  The value placed on property is  held highly in nearly all societies and particularly in democratic societies and are essential to its proper functioning as property can be used to communicate ideas and to support the formation of associations and groups participating in various ways in the process of governing.

Ethical Principles

Ethical egoists might think that the use or exploitation of the property of others is morally correct, but there are no other ethical principles that could be used to support that conclusion.

There are differences in arguments for property rights extending to intellectual property. It is difficult to make a case based on natural law that intellectual property is needed for survival and the advance of the species.  This is not so with other ethical principles.

Applying utility to this conflict between freedom of access to the intellectual property of others and the desire of some individuals and groups  to control that which they create leads to the conclusion that intellectual property ought to be treated as with physical property.  It appears to be accepted that it is in the interest of the largest number of people to protect intellectual property with copyright, trade mark and patent protections for a number of consequences thought to be favorable to the existence and progress of society.  So extending the concept and legal protections related to property is thought to lead to the promotion of more such property and that can serve the interests of society in greater economies and efficiencies and the expansion of possibilities and the extension of the abilities of human beings for creations and communications and for the development of knowledge and solutions to problems.

For Kant the Categorical Imperative would also lead one to conclude that it is morally correct to respect intellectual property.  It might be seen as treating people as means to an end in taking their intellectual creations and using them in the interests of others and even against the interests of those who created such property.  It is possible to will that all people treat the intellectual property with respect as would be specified by legislation.

For Rawls the Principle of Justice involves promoting a maximum of liberty while improving the lot of those least well off-minimizing the differences.  Preserving freedom of intellectual creation whilee insuring that its creators are protected from exploitation and theft would be consonant with the Principle of Justice.  Not to extend protections to the creators of intellectual property would appreciably worsen and not improve upon their situation within society.

Other arguments can be advanced in support of resolutions of this dilemma and an argument can be developed using a multiplicity of ethical principles in support of particular conclusion as to what resolution is morally correct.


“What Things Regulate Speech: CDA 2.0 vs Filtering,” by Lawrence Lessig



Reflections on Intellectual Property by Lindsey Pehrson, CUNY SPS 2009




            In her book, Property Rights in Computer Software: Individual and Policy Issues, ethics writer Deborah Johnson asserts, “The aims and strategies of copyright and patent law seems right on target in seeking to create an environment in which invention can flourish. In this respect they are not bad laws. But, while their aims are right, they seem to lack the conceptual tools to handle the issues posed by computer technology. It appears that copyright law and patent law will have to be modified or abandoned computer-related invention…Whatever changes one support, it seems clear that we must keep in mind that our ends should be the same as those of patent and copyright systems, to create an environment in which creativity and invention are encouraged and facilitated.” 1 Put simply, patent protection is a key component in ensuring the continued invention of new ideas and products, including software. Without an element in the mix that allows authors to obtain credit, both monetary and societal, for their work, they would not be as driven to try new things for the advancement of civilization. If copyright and patents no longer protected software, it could spell the end of entrepreneurial invention that makes a democracy so important. Furthermore, by removing the ability to own property, intellectual or otherwise, we are etching away at the foundation on which this country was built.

Copyright and patents are written into the constitution. Abandoning them because we have entered a Third Wave of technology would alter the capitalist spirit that Americans have built this country around. Though the laws of copyright and patents need to be altered to better fit this new age of Internet creation, they should not be abolished, they should be revised to establish new protection standards for intellectual property. Kimberly Beuther summarized Richard Volkman’s ideas on property rights very astutely. She stated, “Volkman believes that software ownership does not infringe on anyone else’s right to life, and if a programmer chooses to be paid for his work, then this is well within his rights.” 2 Intellectual property is a creation of its owner and, therefore, its owner should be able to say exactly when, how, where and in what context it can be used. No one should have the right to copy or recreate his property (i.e. software) without his knowledge or explicit permission.

Contrary to Volkman’s idea, Thomas Jefferson once declared, “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it…He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” 3

            Thomas Jefferson was one of the founding fathers of the United States and the author of the Declaration of Independence. To many, those qualifications make him an authority on the subject of rights in a democracy. In the last line of the quote, this man who developed the fibers from which America was built, claims that inventions, no matter what type, should not be considered property. There is a lot of room for interpretation here for what an “invention” is and it appears that that was his intent. “Invention” can refer to anything from be a machine to a song. The only requirement is that whatever this object or thing is or does, it is a creation, and that means it should not be considered property period. Thomas Jefferson was a free thinker who revolutionized ideas. He makes a very good point here. Inventions are ideas brought to life. They are by their very nature free and uncontrolled. Therefore, society should not try to take these liberated creations and contain them with rules and laws about who can look at them or alter them, and who can’t. By saying, “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition,” Jefferson is saying that new inventions should serve as the inspiration for other newer creations. That is the true intent of a free society known as a democracy.

            Software is an invention. Thereby, according to Jefferson, its creator should not consider software property; rather, its true purpose should be deemed as a tool by which to encourage other forms of software and the like for the general betterment of society. Society has much more potential for creation when it does not bind inventions to copyrights. In giving this steady thought, it makes a great deal of sense, and serves as a means for answering the consistent headache of how to address intellectual property rights in regards to software or any other invention online. Living in a democracy has afforded us the opportunity to not just hold tightly but also to share freely with our neighbors. Jefferson was very much aware of the limitations of a man’s nature, but he also lived at a time where he saw revolutionary changes. He realized that man had the capacity to give more than he received, and to use his creations for the betterment of civilization because advancing those around him also served to raise his own level of being. We live in a period of creation and reformation that is similar to Jefferson’s time, but, if we were able to expand our minds and really think about the true implications behind and possibilities for our creations, perhaps we could liberate ourselves from the tight standards of needing credit and wholly improve our situation through the free sharing and interchanging of ideas. We could unshackle ourselves and use the Internet for its true purposes: a Third Wave revolutionary technology that is intended to broaden our horizons and transmit information through glorious webs of fiber optic and coaxial cables. True, there is no real certainty that man could rid himself of his selfishness and need for credit enough to give with both hands open, but if each member of society was able to transform their nature and open up to the world, imagine the incredible and enlightened community we would live in. Jefferson’s quote is the epitome of idealism in regards to what society could be if we stopped letting our greed get in the way, and it serves as the perfect argument for allowing software to be free of copyright or any other chains that would seek to bind it.




As the technological era transitions from one period to the next, the United States is forced to rethink previously held assumptions and ideals. For example, the Industrial Revolution saw the automation of numerous jobs and forced Americans to see things from a more cutting edge point of view. Since the creation of the Internet it has seen increasing popularity and a branching out of its fiber optic roots across the face of the world. Numerous benefits have been born of the Internet’s efficiency and quick dissemination of information. Unfortunately, a reoccurring theme that has stemmed from this environment has been the repeated violation of copyright and patent law. A wealth of file sharing sites, such as,, and have allowed users to trade copyright protected files without giving any credit to the owners and original creators of these music, movie and television bytes. The result has been outrage and a steadily burning battle over how best to protect the interests of copyright and patent holders. Exacerbating the problem is the fact that cyberspace can make it very difficult to track individual users guilty of copyright infringement.

There are several core values held by both sides in the copyright and patent case. On one hand there are those individuals that believe that, since we live in a democracy, citizens have been granted the right to ownership. This means control over their creations, as well as the ability to hold personal property that is critical to survival, development and sustained well-being. For example, people purchase homes in order to have a place for their families to live, and automobiles to give them the ability to transport themselves to and from those places their lifestyle requires them to visit (such as work and school). These resources are what allow individuals to have a sense of safety and security by furnishing them with a space of their own where they might be protected from and fortified against harmful outside influences. The property that is held by people becomes a part of their existence in the sense that they are represented by their homes, cars, cloths….and creations. Ownership of anything they make with the resources they possess is considered to be their own.

From an ethical standpoint, the right to own property is supported by both the ethical egoism and consequentialist point of views. Ethical egoists believe that the morally good choice is the one that lets them do what they want. Therefore, the egoist could believe that using or taking advantage of intellectual property and objects that do not belong to them is morally acceptable. Of course, there are no other ethical standards that make this same allowance. Consequentialists who are focusing on Utility believe that by ridding ourselves of copyrights, people will lose the inspiration to create new things. This is because they will no longer be able to achieve credit for their inventions and merely find the pursuit no longer worth the effort. The Natural Law theory says that our natural tendencies are morally correct. However, there is no clear-cut way to say that being able to own intellectual property is completely necessary for the species to survive and progress. The Utilitarian point of view believes that whatever satisfies the interests of the largest number of people or makes the largest number of people happy would be the morally correct action. The argument could conceivably be made that owning intellectual property makes a larger portion of society happy, and therefore, intellectual property rights should be protected by means of patents and copyrights. And, since it makes a larger segment of society happy, owning intellectual property is seen as a critical component in the advancement of society.

With Rawl’s Maxi-Min principle of justice, it is possible to make the case that the moral choice would be to honor the rights of others to own intellectual property. Justice in this theory is preserving and protecting the interests of the original owners of intellectual property by ensuring that those people who would seek to steal from them are restrained in their efforts. Furthermore, keeping this group of creators safe acts as a lynchpin in the stability and progression of a civil society. In Kant’s theory of Categorical Imperative, defending the rights of intellectual property owners is also the morally good choice and should be done, be it through societal pressure or official legislation. Taking the creations of others and exploiting them (as an ethical egoist would do), is a violation of Kant’s belief that human beings should not use each other as a means to an end in order to pursue their own selfish desires, especially when their own use acts as a contradiction to the wishes and intent of the original owner.

What is needed is a balance between private ownership of materials and the public’s right to access information. As the article, Debunking Software Patents Myths 4 stated, copyright and patents are not going to vanish simply because we have entered the Third Wave. They do, however, need to be reformatted to better serve the fluid environment of the Internet. Unfortunately, it is abundantly clear that no one is in agreement about how best to balance protected and unprotected material, leaving lingering confusions and battles between the parties involved. For example, there is a very delicate balance between protecting the legal rights of software creators versus preventing friends and loved ones that use our computer from accessing their software. Clearly, more flexibility is needed to deal with special circumstance.


“To encourage their invention, copyright and patent law were developed in most western countries. These laws were devoted to the delicate task of getting mental creations into the world where they could be used—and enter the minds of others—while assuring their inventors compensation for the value of their use. The systems of both law and practice which grew up around that task were based on physical expression. ” 5


The key here is that the original copyright and patent laws were related to physical objects, not intangible ideas. In fact unless something was tangible, it could not obtain a patent or a copyright. The question becomes, then, how do we handle the electromagnetic waves of material that are floating around in cyberspace? Do we categorize these ethereal things as able to be copyright protected, even though they cannot be brought into physicality? Or, do we say that they must have copyright protection, despite the special circumstances of their being? This question has proven very tough to handle. The Internet has once again left us baffled. The Internet poses new challenges to our old ideas and, as such, we must think hard about what the real implications are and decide how to tackle the issues.


               The Internet is an invention that allows for the almost immediate dissemination of information to the international community by merely pressing the “Send” button. This is excellent for those individuals that are seeking immediate information about something that is happening on the other side of the world. They can easily search the web pages of news stations such as or without having to exert much effort. Regrettably, in this age of data sharing, there have been unintended consequences. Software, music, movies and other media that can be transposed into digital data bytes have been readily transferred from one person to another through file sharing programs such as and While this has been excellent for those individual that are seeking out a much-loved song for free, the consequences for the artists of these songs, software and movies have been extensive. Simply put: people are using their creations without giving any monetary credit back to the originator. This becomes an illegal offense when those files being shared have been granted copyright protection by the U.S. government. The problem is that there are no physical boundaries online; there is no wall to keep one person from sending another the music files they have stored so lovingly on their computers. The intent of many of these file sharers does not seem malicious, the same way that sharing software that you agreed to keep for yourself with other people that use your computer is not malicious. It is a means of helping another human being.   Should copyright and patents be able to prevent us from assisting our loved ones, or even strangers, that quite possibly cannot afford to purchase the software or songs on their own? Is it ethical for copyright and patent law to keep us from helping others?


              This last question is very difficult to answer, and it comes back to true ownership of property. When I purchase a CD at the store, I pay $20.00 for the right to do whatever I would like with the songs, at least I believe I do. Of course, my own ethical compass tells me that burning the CD and posting it online is not appropriate. This is because, though I bought the CD, I do not own the music itself. While I own copies of the music, the original rights of the artist, its inventor, are still in play. I might burn a copy for a best friend or loved one, but that is keeping authors from making their profit on the album they created. That is me violating their copyright and it is not morally correct, but, my need or desire to help those I love that are in need overrules my ethical sense of duty. Quite simply, my emotional ties to my loved ones are much stronger than my ethical ties to the artist. In the end, I am going to help the one I know and love over the one that I don’t know at all. Looking at it from my own perspective it gives me pause and makes me wonder, are those people sharing files acting ethically because of their own sense of responsibility towards the people they know? Is that sense of moral obligation to our parents, siblings and friends more appropriate to obey than our sense of duty to the software companies and music artists? I suddenly realize I am stuck in a quagmire of ethical proportions. I am living out dueling ethical duties without any hope of finding a peaceable solution, like being locked inside Kant’s Categorical Imperative. I see why those people share with loved ones, despite the government’s warning not to. We take the risk upon ourselves because our loved ones mean that much to us. But, it does not make our actions any less illegal. Therefore, like Richard Volkman in "Software Ownership and Natural Rights" , I conclude that software, music or other file sharing should not be at the expense of the creators.

                From a personal angle, if I were to create something, I would want to protect it from being used without my knowledge or consent. I would want to make sure that it wasn’t replicated a hundred thousand times and given away for free when I worked so hard to bring it into physical fruition. Of course, I do realize that ideas themselves cannot be owned. Every person who lives on this Earth has drawn inspiration for their words or actions based on something they have seen, heard or read about, and usually they do not give credit back to the originator. Ideas cannot be owned, because, though human beings are drastically different, some of us think scarily alike. How do we give credit when two different individuals came up with the same thing on their own? Ownership rights get messy very quickly. However, when someone takes a string of ideas and brings them into physical being, be it a song or poem, book or movie, they have made something that is their own creation and deserves protection. At this point, they have two options, seek to get the protection they might need (patent, copyright etc), or put their creation out there and see what someone else is able to make with it. In the case of software, systems like Linux have been drastically improved because the owners, instead of holding tightly to the reigns and insisting on pure credit, unselfishly realized that they had their operating system, though good, could be made great through the variations and input of others. So, they shared the precious source code that brought Linux to life, and waited to see the amazing alterations on it.

               My point is that, perhaps the component of intellectual property rights for software that needs to change are not only the laws themselves, but also the point of view of creators. Being a democracy means we are a society that allows people to take responsibility for their own actions and products. It also means that we can take the credit, and honestly, it must fill a human need because taking credit is one of the things that human beings do best. Unselfish and giving is not our natural tendency. We have to work at conditioning our children to share with their friends. We raise them and try to develop their ethical standards so that they give and not just receive. Children are representative of our true nature. When we grow up, we have the power to return to that selfishness in our jobs, our homes, our lives, and we do. When we create something, our nature tells us that we want to take credit, and we want to continue to be praised and respected for it. In the physical world, this is relatively easy to enforce because if someone recreates something that is ours without our permission, we can hold him or her accountable.

               The Internet changed this with its anonymity and easy dissemination of products. We can no longer easily track and control our inventions, and that has made a lot of authors very angry. Music companies in particular have been outraged over the violation of their artists’ rights. Music sales have fallen drastically, not because people stopped listening to music but because they are getting it for free online, and tracking down the endless number of sources for it seems not only daunting but nearly impossible to do. Instead, these corporations have gone after the most visible targets:, and the like. Unfortunately for them, though this has addressed the main source of the problem, it has by no means quelled it. There are numerous individuals across the globe posting music and movies online, sharing software and other copyright protected files, without end. Some days, it is almost as if our need to take credit and receive increasing monetary reward and status for that acknowledgment has sparked this intellectual property war. The price of CDs jumped from twelve or thirteen dollars to almost twenty (if not more) within a matter of ten years. Artists wanted more but seemed to produce less, leaving many outraged. When the Internet came along it suddenly became possible to take whatever we wanted without giving this credit or monetary acknowledgment to anyone. Now artists want their notoriety back and the Internet will either change its policies to help enforce the copyright laws, or force copyright laws to become more fluid. If the amount of file sharing is any indication, copyright liquidity is exactly what the population wants. I do not know what the outcome will be, but the one thing that is clear is that we are going to continue in this holding pattern of ongoing litigations for the right to keep our things protected online unless we change our outlook on how to address intellectual property rights.

              On a final note, there is the perspective that we should not have intellectual property rights. People like John Perry Barlow argue this point of view repeatedly through articles and commentaries. There are also those that feel that by getting rid of these copyright protections, more people will feel inspired to create. Unfortunately, as long as the United States is a democracy, there is no way that patent or copyright law will ever be eviscerated. We cannot simply rid ourselves of these constraints, but we can try to find a common ground between producers and consumers. That is the only way to make this work. As the Debunking of Software Patent Myths points out, patents actually help generate new ideas and keep the creative juices flowing. Apparently, knowing that our creations will be protected from theft is what makes us comfortable enough to take the time and invent new things. Therefore, we need patents and copyrights for the sake of the continual advancement of society and replenishment of new intellectual tools and ideas. In conclusion, though copyrights do present a problem for intellectual property online, we need them as part of our social system. However, in order to use them to the best of their abilities, we need to rethink the original intentions of the copyright and make it more applicable to the realities of Third Wave technology.   Through deliberate thought, and by loosening our grip on the reigns of control, I believe that eventually, we can come to a conclusion that would please both John Perry Barlow and the authors of new inventions everywhere.




2 Software Ownership and Rights Richard Volkman, retrieved on March 3, 2009


3 Selling Wine Without Bottles The Economy of Mind on the Global Net John Perry Barlow retrieved on March 3, 2009   or


4 Debunking Software Patents Myths from Communications of the ACM , printed June 1992, retrieved March 3, 2009


5 Selling Wine Without Bottles The Economy of Mind on the Global Net John Perry Barlow retrieved on March 3, 2009


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Web Surfer's Caveat: These are class notes, intended to comment on readings and amplify class discussion. They should be read as such. They are not intended for publication or general distribution.                @copyright 2006 Philip A. Pecorino                       

Last updated 8-2006                                                              Return to Table of Contents