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The Virtues of Software Ownership
David H. Carey
The Virtues of Software Ownership
Three broad approaches seem to dominate recent work in ethics: the consequentialist, the deontological, and the emphasis on character or virtue. The consequentialist approach evaluates an action (rule, policy, etc.) by its net consequences or effects. On this approach, for example, good policies are those which on balance do more good than harm for the people affected. The deontological approach, in contrast, appeals to universal principles on which a decision should be based rather than the actual outcome of that decision. On this approach, for example, a decision has moral worth if it respects a right, fulfills an obligation, or follows from a duty. Typically, such rights, obligations or duties have a universal and necessary quality; that is, they would hold for anyone in a given situation, even if undesirable consequences would result from recognizing them. Finally, the third approach (that of so-called “virtue ethics”) emphasizes long-term, habitual character traits (virtues and vices) rather than actions, policies, or principles.
In her address (above), Johnson claims that “copyright and patent laws in this country... are utilitarian in character. Both systems aim to produce good consequences for society in the long run. Debate and discussion about what the law should be with regard to computer software should, then, be framed in utilitarian theory.” In my own work to date, I have likewise taken a consequentialist approach to intellectual property issues. I have argued, for instance, that if allowing some algorithms to be patented benefits society in the long run more than it costs society temporarily to forego unrestricted use of those algorithms, then such patents are morally defensible. I have taken a consequentialist approach largely because I believe that approach reflects the spirit and motivation of U.S. law more than the other two approaches do. In contrast, elsewhere in the world (among other signatories to the Berne Convention), intellectual property laws smack more of deontology. The French, for instance, appeal to what they call droits morals such as paternite – the inherent right of a creator to control the treatment of his or her creation, analogous to the alleged right that parents have with respect to their own children. On this approach, to infringe on a copyright is to violate a personal right, not merely to fail to uphold a social bargain.
On this occasion, however, I want to take the third approach, which emphasizes character traits, virtues. My reasons for taking this approach are twofold: First, of the three approaches just outlined, virtue ethics has the most venerable pedigree, tracing its development from the earliest days of philosophy among the ancient Greeks. (I suspect a similar pedigree may be found in nonwestern thought, but I am here focusing my attention on Western traditions of ethics.) Second is the belief that moral discourse should indicate not merely what is permissible but also what is noble. While I uphold the permissibility, the justification, of intellectual property laws applied to computational resources, I also applaud the nobility of a character like Richard Stallman’s. So, for example, I am both willing to defend AT&T’s rights to its Karmarkar algorithm and, at the same time, to challenge its executives, directors, and shareholders to be generous in permitting its liberal use. Since I am focusing on virtue ethics here, my concern is not so much for the goodness, fairness, and coherence of an intellectual property system – this is Johnson’s concern – as with the goodness, fairness, and integrity of individual persons. Systems, as analogues of persons, may have virtues, too, but my focus here will be on the characters of people.
Specifically, my guiding question is this: How might a virtue-centered ethics in the Aristotelian-Thomistic tradition bolster Stallman’s position philosophically? Several years ago (1987), Stallman gave a talk at the University of Texas, a transcript of which was widely circulated on e-mail lists and bulletin boards. In this talk he referred to “spiritual harm” which results from placing some intellectual property restrictions on software:
The spiritual harm comes from the nondisclosure agreements and licenses that people sign, because each buyer is asked to betray his neighbors. If you want to use a program and your neighbor wants to use the program, the Golden Rule says that you should want both of you to get that program. You shouldn’t aim for a solution where you get it and the other people don’t, if you want to be a good citizen, that is. And the nondisclosure agreement essentially says “I promise to be a bad citizen – I promise to say ‘To hell with my neighbors!’ To hell with everyone! Just give me a copy!” And you can see the spiritual effect that has on the community you live in.
I claim that what Stallman calls “spiritual harm” can be understood, and his thesis defended, in terms of the Aristotelian-Thomistic tradition’s virtue-centered ethics.
Aristotle claims that it is better (beltion) for acquisitions (tas kteseis) to be one’s own (idias), on the one hand, but on the other hand, to make them available to the public (koinas) with respect to their use (tei chresei – the cognate noun chreia and the root verb chraomai can connote poverty, need, or want; so we might expand the last phrase to read “with respect to their use by those in need”). He illustrates this claim with the example of Spartans who use one another’s slaves, horses, and dogs as if they were their own (hos eipein idiois), “even if they have occasion to lack supplies for a journey (ephodion – cf. the Latin viaticum) in the countryside.” Aristotle’s concern here is not so much with rights or benefits but with character – that is, with virtue. For immediately he goes on to say that it is a proper function of the lawgiver how citizens become people of this sort (ginontai toioutoi – that is, disposed to share their possessions). Later in the same passage he refers to the virtue of liberality (eleutheriotes) with respect to possessions (to peri tas kteseis): “To give favors and help to loved ones, guest-friends, or colleagues is the sweetest thing (hediston), and this is a consequence (ginetai) of the possession being one’s own (tes kteseos idias ouses).” He also notes, in defense of property, that evils attributed to it (such as litigation over breach of contract) are due not so much to the political, economic or legal system (i.e., the absence of communism – akoinonesia) as to human nature or character (wretchedness or wickedness – mochtheria).
Echoing Aristotle’s discussion, Aquinas asks whether someone may possess something as propriam – as one’s own. His answer to this question is a pair of theses, based on a distinction between (a) a power to manage and dispense (potestas procurandi et dispensandi) and (b) the use (usus) of external things (res exteriores). The first thesis is that with regard to the power to manage and dispense external things, a human being may possess propria. In fact, he says, humans not only may own things, in a certain sense they must (est etiam necessarium ad humanam vitam), for three reasons: (1) Everyone is more motivated, more anxious (magis sollicitus) to take care of something which concerns oneself alone than something shared by everybody or by a crowd. This reason has as its premise a belief about human laziness (laborem fugiens) to the effect that we are inclined to “let the other guy do it” when it comes to shared responsibilities. (2) Human affairs are conducted more ordinately (ordinatius) when an individual is saddled with responsibility for taking care of something than they are when anyone who wishes manages anything he wishes indiscriminately (indistincte). (3) Peace is better preserved when everybody is contented with his or her “own thing” (re sua), in contrast to a state of affairs in which people share something undivided. In the latter case, quarrels more frequently arise. It is interesting for our purposes here that the argument for property has a distinctly consequentialist flavor: If you want to get things done in a peaceful and orderly fashion, divide things up among individuals.
The second thesis, following Aristotle’s thought, introduces a more virtue-centered emphasis, however: With regard to use, a human being ought not to hold (habere) external things as propria but as communes (things shared in common). This is so that someone (aliquis) may more readily (de facile) share them when others need them. The concern here is not merely with meeting needs (consequences) but also (and perhaps more directly) with a character trait, namely, the disposition to help others. This disposition seems to involve both a cognitive habit (holding, that is, considering, external things as communes) and a conative one (the readiness to share). While this disposition itself can be valued for a consequentialist reason, namely, the likelihood that in cases of need at least someone will be willing to help the needy by sharing resources, the disposition is also valuable in itself, as a readiness or facility, even when needs don’t actually arise.
When the two theses are combined, Aquinas’ position is roughly this: Responsibility for material resources should be an individual matter, but access to them should be communal. This does not seem to be far from the socialist slogan, “From each according to his ability, to each according to his need.” Both views, the Thomistic and the socialist, seem to ascribe to individuals the burden but not the reward of property. Both views, to be plausible, need a theory of human motivation to undergird them. For the socialist, it may be Marxian doctrine that unalienated productive activity is desirable for its own sake, is its own reward, and indeed is the chief human need. For the Thomist or Aristotelian, it is the eudaimonistic value of virtue: That is, one must be virtuous in order to be happy. Insofar as we all want to be happy, we all have a motive for being virtuous. If virtue with regard to property involves both responsible management and willingness to share with others, then we have a motive for bearing these burdens of stewardship.
So what are the implications of the Aristotelian-Thomistic view for software ownership? A summary answer is that individual ownership can be a good thing insofar as it contributes to an incentive for software development (overcoming the tendency to “let the other guy do the work”), to an orderly division of labor, and to a settled understanding about what one can use and what is off limits. Stallman and others have pointed out many of the ways in which software ownership may in practice fail to optimize these desirable consequences, and these failures should be remedied. In principle, though, intellectual property in software is defensible.
At the same time, defense of property rights is only one side of the issue, and perhaps not the most important side. Another side of the issue, one that seems to call for more attention, is the challenge to owners (or rights-holders) to cultivate the virtues of ownership – what makes ownership excellent and noble, and not merely defensible. Noteworthy among these virtues is the disposition to regard software as destined for the public domain even while it enjoys the temporary protection of intellectual property law. This involves a disposition to put the needs of the public ahead of the desire for personal profit.
Many objections may be made to this view. I want to address one of them here. Adam Smith, in reference to the famous “invisible hand,” wrote:
By pursuing his own interest [the individual] frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.
If one really wants to benefit the public, one might argue, forget about Aristotelian-Thomistic virtue and appeal to the profit motive.
In light of the foregoing discussion, one may respond to
this objection on many levels. First, benefiting the public may be a,
or even the only, concern of consequentialist ethics, but it is not the
only concern of ethics in general. Notions of rights, duties, obligations,
character, virtue, motivation, and happiness must also be addressed. Secondly,
Smith does not (nor does he intend to) give us a complete ethical theory
here. He is not even offering (in this passage) a complete economic theory.
He does not say that by pursuing his own interest the individual always,
invariably, or even typically promotes that of the society more effectually
than when he really intends to promote it. Rather, Smith says “frequently.”
His tone his anecdotal ( “I have never known . . .”), not systematic.
Indeed, his tone may be even be construed as sardonic (“It is an
affectation, indeed, not very common among merchants, and very few words
need be employed in dissuading them from it.”) In any case, mere
affectation of concern for the public
good is quite distinct from the actual virtue
of stewardship, which is a thoroughgoing, stable, perduring disposition
deeply involving the springs of motivation and therefore much more likely
to be effective in contributing to the public good than mere affectation
could ever be. So even if we confine our discussion to consequentialist
ethics, the cultivation of Aristotelian-Thomistic virtue may be superior
to the profit motive in maximizing social utility. Aquinas’ position,
of course, depends on many presuppositions the discussion of which would
take us far afield here, but so does Smith’s. The metaphysical reality
of the “invisible hand” may be as elusive to empirical investigation
as the summum bonum of Thomistic ethics.
But to the extent that my response here is an invocation of the noble,
Aquinas, I think, has the edge.
Whitman College
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