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September October 2005 IT Pro 49

Unauthorized Copying

of Software:What is Wrong with theNonexclusive Argument?Mikko T. Siponen

Although unautho-

rized copying of soft-ware is regarded asillegal in more and

more countries, ordinary com-puter users continue to inter-mittently engage in the practice.The issue of whether unautho-rized copying of computer soft-

ware is morallyjustified and, addi-tionally, whether

developers and software com-panies can truly own software,has become increasingly rele-vant in the era of informationsociety. These questions notonly cover the ontological foun-dations of software as a form ofintellectual property rights,butalso the social and economiceffects of free versus propri-etary software,as the writings inthe For Further Readingside-

bar discuss. Such questions alsolead to further debate about

whether is it justifiable to copy a

program that you yourselfwould never buy (IntellectualProperty Rights and ComputerSoftware,J.Weckert,J.BusinessEthics,Apr. 1997),or whether itis justifiable to copy legally pur-chased software for relatives,family, or friends without com-pensating the software producer(Copying Computer Programsfor Friends, D. Birsch, 6thAnnual Ethics and Technology

Conference, 2003).

NONEXCLUSIVEARGUMENTS

One of the most interestingarguments in favor of copyingcomputer software is the nonex-clusive thesis. The argument isbased on the fact that softwareis, by nature, intangible andnonexclusive, and that it istherefore impossible to stealaprogram by producing an illegalcopy of it. I only duplicate thesoftware, the reasoning goes,but I do not physically steal itfrom you, since you still havethe software. If I stole your com-puter, however,I would be tak-ing something physical andtangible from you, since thecomputer would no longer be inyour possession.

Philosophers such as E.C.Hettinger and John Ladd, andwell-known computing profes-

sional Richard Stallman thinkthat physical theft is not com-

Whethersofware

is

tangible

or not

shouldnt

govern how or when

people copy it.

parable with copying intangible

things (such as computer soft-ware).Not only do they believethe two are distinct and unre-lated, but because software isinherently intangible andnonexclusive, they believe thatreproducing and disseminatingit can be justified. Also, theintangible nature of softwareseems to appeal to ordinarycomputer users thinking:Theyargue that softwares nonexclu-sive nature is indeed one of the

main reasons why the generalpublic sees no moral problem incopying it.

For example,Ladd, an ethicistand professor emeritus of phi-losophy at Brown University,argues that the notion of intel-lectual property is a lawyersinvention created to preserveand extend ordinary propertyrights into the intellectual world beyond what is morallyacceptable. He espouses thisnonexclusive argument whenhe maintains that there is nopoint in retrieving a bit of infor-mation that has been takenfrom youbecause you stillhave it! Bill Gates has lost noth-

1520-9202/05/$20.00 2005 IEEE

For FurtherReading

Inside


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50 IT Pro September October 2005

ing if someone copies one of his soft-ware programs except money!

(Ethics and the Computer World:ANew Challenge for Philosophers, ACM Computers & Society, Sept.1997).

As this passage indicates,nonexclu-sive arguments can also have a certainrhetorical appeal. Using Gates, how-ever,is purely a rhetorical device, andhas nothing to do with the real point ofthe argument.Gates is an extreme casein the world of software producers.Indeed, the reader has to wonder whyLadd doesnt refer to a programmer

who works hard on a commission basisbut does not make enough money tolive on,even though people widely usecopied versions of his software.Also,would people continue to write goodsoftware simply as a hobby or for thegreater good? And would people startnew software companies, if they werenot allowed to sell and control theresults of their hard work? People whocreate a workin this case,softwarefor a living usually want to retain somelevel of control over it.

WHATS WRONG WITH THENONEXCLUSIVE ARGUMENT?

It is true that in terms of material,software is a nonexclusive thing.Thatis, in the case of copying, the soft-wares owner does not lose the

instance of the software. But that isnot the issue.The nonexclusive argu-

ment wrongly assumes that owner-ship rights to a thing depend on itshaving a physical existence.However,our rights to control some things areindependent of their physicality.

In fact, if the right to free softwareis based on the nonexclusive thesis, itleads to questionable situations.Consider for example,the right to pri-vacy, which would be lost, if youaccept the nonexclusive argument.After all, information itself is nonex-clusive. If some form of personal

informationsuch as,say, naked dig-ital photographs of peoplewasmade readily available to everyone,the owners would technically stillhave the information but so wouldeveryone else! Im sure most peoplewouldnt accept this line of thinking.Therefore, as this example shows,rights do not necessarily depend onwhether the things people claim toown or control are tangible or not.

How, then, can people have a rightboth to privacy and to own software?

Without discussing all the debates onauthorized copying, one attempt toaddress this issue is to point out thatthe assignment of rights is a matter ofsocial agreement. It is relevant tomake such contracts to ensure har-monious human existence. But then,

The following articles outline the nonexclusive argument and discuss

free versus proprietary software:

Justifying Intellectual Property, E.C. Hettinger,Philosophy and

Public Affairs, vol. 18, no. 1, 1989, pp. 31-52.

The GNU Manifesto, R. Stallman, Computers, Ethics and Society,

2nd ed., M.D. Ermann, M.B. Williams, and M.S. Shauf, eds., Oxford

Univ. Press, 1997, pp. 229-239.

Why Software Should be Free, R. Stallman, Computers, Ethics &

Social Values, D.G. Johnson and H. Nissenbaum, eds.,Prentice Hall,

1995.

Computer Ethics, 3rd ed., D.G.Johnson, Prentice Hall, 2001.

For Further Reading

www.computer.org/join/grades.htm

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how can society achieve such agree-ments? I can imagine two options,of

which society would have to chooseone.Would you prefer to live in a soci-ety where there is no possibility forsoftware developers or artists to con-trol and benefit from their creations?Or would you prefer to live in a soci-ety where your income depends onyour efforts? Some people who arenot involved in the music or softwarebusiness might accept the fact thatpeople would not gain from the prod-ucts that they develop and that thesecreations should be freely available to

everyone.There is a problem with the latter

view, and it is not just from the view-point of software developers andartists.To ensure justice in social con-tractsto decide whether peopleshould respect software rights or notit is possible to employ a simplified ver-sion of political philosopher JohnRawls veil of ignorance.Rawls way ofguaranteeing justice and impartialityis to imagine a veil of ignorance thatprevents decision makers from know-

ing who they are in society. So peopledo not know their status, gender, age,profession, and so on when choosingthe principles on which they found asociety. Indeed, the fact that they donot know these characteristics ensuresimpartiality, preventing people fromcookinga decision in their favor,andthe decision would then not be fair andimpartial.

Although, under the veil of igno-rance, people do not know who theyare in society, I assume that theywould appreciate the possibility ofbeing able to derive income fromtheir work efforts and also have somecontrol over their creations (includ-ing software products).

From these examples, its arguablyfair and just in general for people toclaim financial reward for their cre-ations. This being the case, everyonehas a good reason to obey a law thatenforces this right, given that the lawis just and fair (and I just demon-

strated that it makes sense to allowpeople to make money from their cre-

ations). Laws that are just and fairshould be respected.Otherwise,it can

be difficult to live in harmony:Wouldyou accept the argument that anyoneshould be allowed to break the lawwithout a morally justified reason?Most people would likely answer no;at any rate, the nonexclusive argu-ment is not a morally justified reasonfor breaking the law, since rights to athing do not depend on its physicalexistence.

Mikko T. Siponen is a professor in theDepartment of Information Process-

ing Science at the University of Oulu,

Finland. Contact him at mikko.

[email protected].

For further information on this or any

other computing topic, visit our Digi-

tal Library at http://www.computer.

org/publications/dlib.

September October 2005 IT Pro 51

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Chapter3 Article 1