Computers, Information Technology, the Internet, Ethics, Society and Human Values
Philip Pecorino, Ph.D.
Queensborough Community College, CUNY
Chapter 5 Intellectual Property
There are those who believe that Intellectual Property should be treated as property and then subject to the laws of copyright and patenting and there are those who think that software and other creations of the digital age and dependent on digital technology should not be treated as property in the same way. Read a number of articles defending and arguing against that latter position includingMagna Carta for the Knowledge Age and then take a position on this topic or join in with others who have already stated theirs and either assist them or criticize their position.
Does the existence of computers and their widespread availability lead to the creation of a good deal of inventions, practical and artistic, and to the ease of copying those inventions existing in digital form so that the widespread copying in effect both challenges and changes the idea of the right of a creator to control the ownership or possession of the creation? Does the existence of information networks lead to the practical preconceiving of the very idea of ownership of property or the right of controlling intellectual property?
CASE:Read this case and discuss the questions found at the end of it.
To protect their intellectual property some companies are invading the computer systems of their customers. To prevent illegal copying some companies may go so far that they actually have spyware (that was loaded on the music CD's) placed on people's computers who complied with everything they wanted them to do. How correct or acceptable is such behavior?
The following are remarks, reflections and responses to issues and questions related to this matters in this chapter. Each offering is proceeded by the authors name and institutional affiliation.
Chris Murphy, CUNY, SPS, 2007
Arguments against ownership of IP:
Marie Lafferty, CUNY, SPS, 2007
Software as Intellectual Property : Pros and Cons
“Locke’s theory is intuitively appealing: individuals own themselves, or at least cannot be owned by another; since labor is an extension of one’s body, one’s labor cannot be owned by another.”1
As noted in the quotation above, Western thought and its laws have supported the idea of intellectual property for hundreds of years. Software is the direct creative expression of idea; the labor of the programmer is manifested in code, and as such, compels us to recognize the intellectual property rights of software. IP copyrights state that software is owned by its creator who has the exclusive right to determine when and if it is copied.
This reasoning follows natural law theory, but the argument can also be made from the consequentialist point of view: without copyright protection, programmers would be less likely to continue to program; for the most part programmers earn their living for what they do. This would in turn stop or slow the flow of creative ideas, while driving up the price, both consequences not in the interest of the greater good. Yet another argument is against illegal copying. The practice of sharing software once paid for, or individual or corporate copying is illegal, individuals have a moral obligation to obey the law, unless there are overriding considerations demanding that it be broken. Convenience or decreased cost fits neither of those reasons, therefore the law morally must be obeyed.
There are other arguments and questions: Rawls theory demands that we evaluate the overall good in terms of advantaging the least advantaged. Would they be better off with or without copyrighted software? In the short run, software may be obtained at no cost, but then we need to ask ourselves if this then places the owner in the role of less advantage, and act to his detriment? And who does it gain that the gain overrides the disadvantage?
Software Should Be Free
“Humans have not inhabited Cyberspace long enough or in sufficient diversity to have developed a Social Contract which conforms to the strange new conditions of that world. Laws developed prior to consensus usually serve the already established few who can get them passed and not society as a whole.” http://www.law.duke.edu/boylesite/ipmat.htm#Politics IP
Software has put society in a new position: a position of equality of information that has never been a possibility before, due to the inherent costs in reproducing and maintaining knowledge. It costs some initial outlay of money to create software, but nothing at all to distribute. This unusual new position of intellectual property bears watching. We have, as the quote above notes, never been here before. Richard Stallman, of the EFF, notes that, by denying users the right to either copy or alter programming; they are causing them to “feel internal psychological pressure to justify them, by downgrading the importance of helping one’s neighbors – thus public spirit suffers. This is psycho-social harm associated with the material harm of discouraging use of the program.” He goes on to explore a similar effect on the creators themselves, and in sum, calls this damage to social cohesion. There are instances where the side of non-proprietary software—Linux and Mozilla two good examples— may lie squarely in the interest of the greater good of society, where the free flow of expression is enhanced. This is, most would agree, one of the greater aspects of intellectual property that law was designed to protect.
Many people have already argued the case for free software (both in cost and code availability) in the interest of the common good, the exchange of ideas, and furtherance of progress into the cybersphere. And in some respects, the case is being made in the trenches by people using, copying and distributing software in such large numbers. That fact alone demands a new way of looking at software, and intellectual property.
Until then, in my point of view, the old tradition of IP rights deserves observance, barring discovery of a higher societal value which would tip the scale in the other direction. From the standpoint of respect for the individual creators, We ought not to jump to new conclusions without reason, irrespective of cost--at least until we arrive at the time that Lawrence Lessig of Stanford Law hopes for when he writes “A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed2.”
1. Johnson D, Computer Ethics,p.154 Prentiss Hall, Upper Saddle River, NJ 2001
2. Lessig L, Free Culture, p.279 Penguin Group, NY, NY 2004; and
Jack Friedman, CUNY, SPS, 2007
The article “Intellectual Property on the Internet: some technical and moral issues” by John Weckert & Geoffrey Fellows at Charles Sturt University is the most compelling argument I found against the idea of treating things like software as Intellectual Properties. As you will see in their conclusion, “We have considered arguments for intellectual property and found that the justifications are not very strong - certainly not as strong as one would assume from popular discussions. Nothing much follows from the dessert argument or the Lockean one for commodity rights, although both do give some support to moral rights. And it is not obvious that society is better off because of copyright and patent laws. The argument based on harm and incentive contains a large portion of faith. The onus should be on those who want these laws to demonstrate clearly that society would be worse off without restrictions on copying the ideas of others. Given the low cost, ease and speed of copying and the kinds of laws necessary to police them and their possible consequences, this may not be easy, although as we also saw, it is technically possible to some extent. On a pragmatic level, if the ease of duplication overwhelms the 'rights' of an owner, perhaps the current system of copyright is not suitable. The cost of policing might outweigh the benefits of protection. It is much more difficult than is often admitted, to make a strong case for the ownership of intellectual property, particular that held and transmitted in electronic form.” 
This article answered many of the questions I had concerns about. It clarified my issue over copying off the internet and why that really wasn’t stealing. It assured me that owners of thoughts and ideas would not be harmed by the sharing of those ideas and made me realize that owners never really lose anything, most of all their own thoughts. Finally, it stated strong reasons why physical property was different and thus, deserved to be treated differently.
On the opposite side, I found that the Computer Crime & Intellectual Property Section of the United States Department of Justice made the strongest arguments in relation to the importance of protecting Intellectual Properties. Many of their arguments were based upon the impact that IP has had on our global economy and how the recognition of IP acts as a tremendous incentive to artists and business people alike.
The site states, “This is a pivotal time for intellectual property enforcement. Market and technological developments have converged to create an environment in which the distribution of both legitimate and illegitimate goods flourishes as never before. As economic freedom expands to more and more countries, their manufacturers and consumers are increasingly interconnected due to advances in telecommunication networks, integrated financial markets, and global advertising.
This interconnected global economy creates unprecedented business opportunities to market and sell intellectual property worldwide. Geographical borders present no impediment to international distribution channels. Consumers enjoy near-immediate access to almost any product manufactured in the United States or abroad, and they are accustomed to using the international credit card system and online money brokers (such as PayPal) to make payment a virtually seamless process worldwide. If the product can not be immediately downloaded to a home PC, it can be shipped to arrive by next day air.” They add, “Whether sold via the Internet or at sidewalk stands on New York's famous Canal Street, the harm to the U.S. economy from IP theft is substantial.”  While they make very strong arguments for the protection of IP and its deserved equal treatment to physical property, I find their argument flawed. I think they are talking about the consequences of what will happen if people share expressions of thought in terms of dollars and cents more than whether it is morally right or wrong. Whether creativity will be diminished or a company will make less money is not an argument for or against whether something is right. Their correlation between IP and the phony Fendi pocketbook sold on Canal Street is just not reasonable. Finally their desire to punish these alleged crimes criminally rather than civilly is a bit over the top for me.
I am not arguing against the creation of a system which in some way would give recognition and financial reward to the person or persons responsible for creating a finished product like software that can be copied or downloaded from the internet. I see a need here. I am concerned with who makes the determination of compensation and the mechanisms chosen for enforcement. I am equally concerned about the potentially chilling effects on free speech and the complexities of jurisdictional issues. Computer software found on the net might indeed need a “new look” in terms of how it is accessed and at what cost, if any. The question is whether it should be treated differently than physical commodities and I believe that it should not.
Joseph Snellenberg, CUNY, SPS, 2007
Against Intellectual Property Rights:
“Signing a typical software license agreement means betraying your neighbor: ‘I promise to deprive my neighbor of this program so that I can have a copy for myself.’ People who make such choices feel internal psychological pressure to justify them, by downgrading the importance of helping one’s neighbors – thus public spirit suffers. This is psycho-social harm associated with the material harm of discouraging use of the program.”
--Richard Stallman (“Why Software Should be Free”, 1991)
This quote from Richard Stallman’s article is an important statement against treating software as intellectual property because it addresses two issues that have arisen out of some arguments for treating software as IP. First off, if Person A buys some software for a computer and signs a license agreement for that product, then he can use it all by himself. However, if Person A lives with Person B and Person C, and all three people share the same computer, can Persons B and C use the software Person A bought? In most cases, the real-world answer is yes because most software that use license agreements are programs like firewall or antivirus programs, which are intended to protect computers from malicious programs or keystrokes. However, in the eyes of companies, they see that there are more people using their product than the number of people who purchased or signed a license agreement.
With this knowledge in mind, these companies can go after Persons B and C for using a product without a license to do so. In the process of this action, Person A might be placed in a tough situation: either help his friends with their problem or side with the software company and justify his reason for signing the license agreement. The amount of legal and social troubles that arise from this case are enough to make a person’s head spin. As a result, Person A is forced to make another hard decision over whether or not the software he signed a license agreement for is worth the trouble of losing two good friends over or if the shared computer is better off without the software.
Thanks to intellectual property rights (I shall abbreviate these IPRs), Persons A, B, and C are pulled into a situation that goes through many people’s minds during this kind of crisis: Do I break the law to ensure that my computer is working right and not lose friends/neighbors because of a single document, or do I abide by the law and betray my friends/neighbors for my own personal profit by not only forbidding them from using my computer, but also for attempting to use a program without signing a license to use said program? Because IPRs are strict and since people have the results of previous cases focusing on such rights in their minds, companies stand to lose potential customers as a result of enforcing IPRs. The quote above addresses this dilemma clearly. A license agreement may be a good idea for companies to use because it can earn money back for making a product for everyone to use; however, in the long run, the company might actually lose potential customers because of how IPRs are structured and forcing those potential customers to not buy the product and sign a license for it.
This quote also brings up another conflict that IPRs can cause. Humans as a species learn and prosper through social interaction with one another. One person creates an object and shares it with friends; one friend may point out a serious flaw with the object and help the creator fix it so the object can be more useful and practical; another friend of the creator can help the creator market the object to the masses and make the object financially successful. However, if there are limitations in place that control how a product is distributed, then the creator cannot benefit from sharing the product with others because the people who could help improve the product are prevented from sending their input and comments/criticism to the creator. In other words, IPRs damage the social network of people by limiting how much knowledge about a product can be shared amongst common users as well as between common users and product developers/distributors.
For Intellectual Property Rights:
“The riddle is this: if our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can't get paid, what will assure the continued creation and distribution of such work?”
--John Perry Barlow (“Selling Wine Without Bottles”, 1992-1993)
This quote from John Perry Barlow’s article is an important defense for treating software as intellectual property. Think about the moment when a software developer finally completes his product. Aside from his sheer amount of joy and exhaustion, he is going to naturally want some form of gratitude for taking time out his life to make a product that will supposedly help other people. If there are no laws or restrictions on how the developer gets paid—or in the developer’s mind, thanked for his work—then how exactly is the developer going to receive the gratitude he thinks is rightfully owed? Sure, having millions of people using the product is some form of gratitude; however, the developer took time out of his life—along with his job, friends, family, etc.—to make this product, so naturally he will be expecting some form of financial returns from his product’s sales.
With the help of IPRs, software developers can gain some sense of satisfaction from creating a product. As the title of Mr. Barlow’s article suggests, selling wine without bottles—aside from the obvious lack of a method to keep a liquid contained—prevents the consumer from knowing the winery that produced the wine, thus not creating an image that the wine comes from a respected source. The same logic can be applied to computer software; by receiving some hip new software from a close friend and not from the developer himself, the consumer loses the chance to learn who is creating the product and slowly placing trust in the developer for making good products. In other words, the developers lose out on potential customers and the act of getting a copy from a friend instills a mindset that one does not necessarily need to buy software to use it, rather that they simply need to wait until it is out and get it from another source for free. On top of that, the distribution can just be one or two people, for example, who buy the product for the general price of $24.99 and then make a million or so copies and hand them out to the public for no cost; clearly, the developers only gained back less than a fraction of the cost they put into making and distributing the product. Through IPRs, this case can be avoided by turning the one or two people who initially bought the product only to copy and redistribute it from helpful individuals into criminals. By stopping the illegal distribution of a product through electronic or digital means, IPRs allow software companies and developers to receive the gratitude they expect from creating and distributing a product.
One more issue is raised through the quote: product protection. Without IPRs in place, there is no way to stop a person from buying a product, tweaking it a little and redistributing the product and claim it as their own. In the process of doing so, the initial company or developer that made the product loses out on revenue because the tweaks made by the individual who redistributed the tweaked product most likely fixed some problems that the company or developer overlooked in the first release of the product, thus making the tweaked version more popular and earn that individual the money that the company or developer would have received. In other words, the individual that tweaked the product and is selling it under a different name is—in a sense—stealing from the developer or company. If IPRs are in place, the individual is forced to not only defend his product, but he must provide proof that he came up with the idea prior to the software company or developer came up with the idea. If he cannot, then the individual is looking at either jail or other consequences.
Personal Feelings about Intellectual Property
On the topic of intellectual property, my opinions on the subject go hand-in-hand with my feelings on censorship, to an extent. Intellectual property covers items that today are either very important to computers or part of society. For example, music is one such item that falls under intellectual property and is a subject of controversy. On one side, there is the argument that music in digital format (e.g., MP3 files) should be free to not only distribute, but be available at no cost to the listener. The opposite is the argument that music in digital format should cost money and distributed either through approved special programs or with consent from artists/musicians/bands/etc. This case sheds light on how a cliché motivation has stealthily slipped into a societal issue and indirectly regulated how cases about intellectual property get decided.
The most famous case of the past decade regarding intellectual property is the case of Napster vs. Metallica. In the late 90s, Napster appeared on the scene offering free downloads of music from a wide variety of artists and bands. Most people welcomed this with open arms because it gave people the opportunity to get the tracks they wanted from an artist they liked without having to shell out $15 to $30 for a CD with songs they may never listen to. However, the record industry did not like this, as did several music groups and solo artists, like the rock band Metallica. Both the record industry and these groups/artists argued that Napster was taking money away from them by offering their music for free. This is where the cliché appears. Money has taken over the thoughts of those in the case against Napster. They are not thinking about the long-term effects on their fans or their music sales; they are not thinking that using sites like Napster might actually boost CD sales because people get to hear the music first before buying the album. The record industry and these artists are only concerned with how fat their wallets are and keeping them the size that they are comfortable with.
While I may not approve of how the cliché motivation of increasing one’s personal wealth has driven some IP cases, I do feel that some limits are necessary for software and other similar products. There are certain cases that make me feel that IPRs are helpful to a degree. Most of these cases focus on a situation where a person has taken a product, formatted it for easier use, market it as a new product altogether and then go on to defend their claim that this new product is genuine. In these cases, it is clearly obvious that the new product is genuine…genuinely stolen from a software company or another developer. I feel that if a company went out of their way to satisfy customers with a product only to have some individual take that product and resell it under a different name at a lesser price, that company should be given some form of apology or payback. Now, one may ask, “Why do you support a company like Apple that had the programming code for the iPhone cracked by an individual when you rail against Metallica for attacking Napster?” My response is simple, but a little lengthy.
The reason behind the situation with Apple is that people were upset that the only phone carrier supporting the iPhone was AT&T. For some that was a blessing, for others it was a pain. The individual went ahead and worked to crack the iPhone code and profit from this act when Apple clearly understood they had made a poor decision by giving a single carrier to carry something as big and revolutionary as the iPhone; on the launch date, many people not only bought the iPhone, but tried to activate it and switch to AT&T as soon as they got home or even right in the store. There was a large problem with this as many people could not switch because the iPhone was released at 8:00pm, when there were not as many AT&T employees on hand to handle the massive surge of new customers and phone activations. Apple realized this error almost immediately and set to work on fixing this problem. Then, someone broke the code and allowed most carriers to use the iPhone technology. This individual was caught and arrested for what he had done. Some weeks later, Apple made it possible to use whatever phone carrier a person had to use the iPhone with. In short, had that person waited a little longer before trying to crack the iPhone code, this individual may not have been punished for the crime committed. Here, I feel that this is case of someone being too impatient and jumping the gun when a company with a respectable track record for customer service realized it screwed up and went to correct the problem. For that, I have respect for IPRs and the laws that support them because in this case, IPRs not only helped protect a new technology, it also ushered in the change that the criminal act tried to make possible happen legally and with better insurance. Personally, I’d rather have a “use any phone carrier with the iPhone” program from Apple directly rather than from some unknown person who may or may not have a substantially working program.
In the case of Metallica vs. Napster, the context is very different. As I explained above, Metallica attacked Napster on the grounds that Napster was taking away money from Metallica with the distribution of music for free. At the time of the case, Metallica wasn’t exactly the “it” rock group of the day. But, they managed to convince record company producers and other artists to support their case and went on to win it. Part of my problem with this situation lies within the core of the copyright law: “At the heart of the copyright law is a distinction between ideas and expression. An idea cannot be copyrighted; the expression of an idea can be.” (Johnson, Deborah. Computer Ethics. Prentice Hall, 2001. Pg. 144). Napster never violated anything here other than not have the songs in a CD format. Napster never offered “Enter Sandman” as its own original song; it gave credit to Metallica and simply offered a place for people who just wanted individual songs to find them without having to waste money for 11 other tracks they didn’t want. In short, the expression of an idea part was never violated, in my opinion; the distribution of that expression was what truly called into question instead. The result of Metallica vs. Napster shows that even with a small fee, distributing music digitally can be successful and not seen as an act of theft.
Overall, intellectual property and related issues with IP do not bother me as much as say, censorship issues bother me. Maybe it is because I am used to using programs like iTunes to get my music digitally, but I feel that there are some issues that make the case that intellectual property rights should be in place and not removed completely. I do agree that in some cases IPRs have made computing technology a little more stressful, but at the same time, it has made that same technology safer and more useful. Personally, I think that IPRs need to have a more succinct and finite definition of what they affect and control, but for now, the ones in place do handle the job to the best of their capabilities.turn to next section
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. email@example.com @copyright 2006 Philip A. Pecorino
Last updated 8-2006 Return to Table of Contents