2. Is it Wrong to Copy Proprietary Software? – Proprietary Rights in Computer Software: Individual and Policy Issues - The Research Center on Computing & Society

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Deborah G. Johnson

2. Is it Wrong to Copy Proprietary Software?

The issue here must be clarified in at least two ways. First, making a backup copy of a piece of software (which you have purchased) for your own protection may not be illegal. Second, while I have labeled this the “individual” moral issue, it is not just an issue for individuals but applies as well to collective units such as companies, agencies, and institutions. The typical cases that I have in mind are the cases in which either you make a copy of a piece of proprietary software to give to a friend, or you borrow a piece of software from someone who has purchased it and you make a copy for your own use. These cases do not seem to differ significantly from the case in which a company buys a single copy of a piece of software and makes multiple copies for use within the company in order to avoid purchasing more.

The intuition that copying a piece of software is not wrong is understandable. Making a copy of a piece of proprietary software is easy, seems harmless, and the laws aimed at preventing it seem ill-suited for doing the job. Nevertheless, when I examine the arguments that are made (or might be made) to support the conclusion, I find that I can not “buy in.” I am compelled to conclude that it is morally wrong to make an illegal copy of a piece of software, because it is illegal. The key issue here has little to do with software per se, and everything to do with the relationship between law and morality.

Perhaps the best way to begin is by laying out what I take to be the strongest arguments for the moral permissibility of individual copying. The strongest arguments claim (1) that the laws protecting computer software are bad, and, then, either: (2a) making a copy of a piece of software is not intrinsically wrong, or (2b) making a copy of a piece of software does no harm, or (2c) not making a copy of a piece of software may do some harm.

I will address premise (1) in the next section of this paper when I examine complaints about the law. For now, however, it is important to get clear on what might be claimed in premise (1). Here are some of the possibilities: (1a) all property law in America is unjust and the software laws are part of this; (1b) all intellectual property laws are unjust and software laws are part of this; (1c) most property law in America is just, but the laws surrounding computer software are not; (1d) while the laws surrounding the ownership of software are not unjust, they could be a lot better. The list could go on and just which position one holds makes much of the difference in the copying argument.

I do not want to take the time to run through these arguments so I am going to short-cut my argument here by just proclaiming that my position (to be elaborated in the next section) is that the system of intellectual property rights in America (in particular the patent and copyright systems) may not be the best of all possible systems in every detail, but both copyright and patent law have good ends and aim at the right balance between what can and what cannot be owned. In other words, while I recognize that the extant system of copyright and patent protection for software could be improved, I do not believe that these systems of law are blatantly unjust or wholly inappropriate for computer software.

The next step in my argument is to claim that an individual has a prima facie obligation to obey the laws of a roughly just system of law. “Prima facie” means “all things being equal” or “unless there are overriding reasons.” The prima facie obligation to obey the law can be overridden by higher order obligations or by special circumstances which justify disobedience. Higher order obligations will override when, for example, obeying the law will lead to greater harm than disobeying. Higher order obligations may even require civil disobedience. That is, if the law is immoral, then disobedience is morally obligatory. Special circumstances can justify disobedience to an otherwise good law when harm will come from obeying the law this one time. For example, the law prohibiting one to drive on the left side of the road is a good law, but one would be justified in breaking it in order to avoid hitting someone.

So I am not claiming that one always has an obligation to obey the law. I argue only that the burden of proof is on those who would disobey roughly good laws.

Given that extant laws regarding computer software are roughly good, which I am simply proclaiming for the moment, and given that one has a prima facie obligation to obey roughly good laws, the second premise carries the weight of any argument for the moral permissibility of copying. Hence premises (2a) – (2c) have to be examined carefully.

I agree with premise (2a) that there is nothing intrinsically wrong with making a copy of a piece of software. If there were no laws against it, such acts would not be wrong. Indeed, I have argued elsewhere that property rights are not natural or moral in themselves (Johnson, forthcoming). They acquire moral significance only when they are created by law and only in relatively just systems of law. However, premise (2a) does not support the argument for copying because copying has been made illegal and as such it is prima facie wrong.

According to premise (2b) making a copy of a piece of software for personal use harms no one. If we think of copying taking place, as in (2a), in a state of nature, this premise appears to be true, i.e., no one is harmed. However, once we are in a society of laws, the laws create legal rights, and it seems that one harms others by depriving them of their legal rights. When one makes a copy of a piece of software, one deprives the owner of the legal right to control the use of that software and to require payment in exchange for the use of the software, and this is a harm. Those who think this is not a harm should talk to small software companies or individual entrepreneurs who have gone into the business of developing software, invested time and money, only to be squeezed out of business by customers who buy one copy and make others instead of buying more. So, premise (2b) is false in that making a copy of a piece of software does harm someone.

Premise (2c) has the most promise, for if it were true that one would actually be doing harm by obeying the law, then one might have a moral reason for overriding the law, even if it were relatively good. Richard Stallman (1990) and Helen Nissenbaum (1991) have both made arguments of this kind. Both argue that there are circumstances in which not making a copy or not making a copy and providing it to a friend does some harm. However, in their arguments, the harm referred does not seem of the kind to counterbalance the effects of a relatively just system of property rights. Both give examples of how an individual might be able to help a friend out by providing an illegal copy of a piece of proprietary software. Both argue that this discourages altruism. But, this argument ignores the harm to the copyright or patent holder.

Even if I were to grant that not providing a copy to a friend is doing harm, we have to compare the harms and choose the lesser. Given what I said above about the prima facie obligation to obey the law, it follows that there may be some situations in which copying will be justified, namely when some fairly serious harm can only be prevented by making an illegal copy of a piece of proprietary software and using it. In most cases, however, the claims of the software owner to her legal rights would seem to be much stronger than the claims of someone who needs a copy to make her life easier.

If the position I have just sketched seems odd, consider an analogy with a different sort of property. Suppose I own a private swimming pool and I make a living by renting the use of it to others. I do not rent the pool everyday and you figure out how to break in undetected and use the pool when it is not opened and I am not around. The act of swimming is not intrinsically wrong, and swimming in the pool does no obvious harm to me (the owner) or anyone else. Nevertheless, you are using my property without my permission. It would hardly seem a justification for ignoring my property rights if you claimed that you were hot and the swim in my pool made your life easier. Similarly, if you argued that you had a friend who was very uncomfortable in the heat and you, having the knowledge of how to break into the pool, thought it would be selfish not to use that knowledge to help your friend out.

Of course, there are circumstances under which your illegal entry into my pool might be justified. For example, if someone else had broken in, was swimming, and began to drown. You were innocently walking by, saw the person drowning, and broke in, in order to save the other. Here the circumstances justify overriding my legal rights.

There seems to be no moral difference between the two cases. Breaking into the pool and making a copy of a proprietary piece of software are both acts which violate the legal rights of the owner. And, they are legal rights created by reasonably good laws. I will grant that these laws do prevent others from acting altruistically, but this, I believe, is inherent to private property. Private property is individualistic, exclusionary, and, perhaps, selfish. So, if Stallman and Nissenbaum want to launch an attack on all private property laws, I am in sympathy with their claims. However, I would press them to explain why they had picked out computer software law when private ownership of other things, such as natural resources or corporate conglomerates, seem much more menacing.

I conclude that it is prima facie wrong to make illegal copies of proprietary software because to do so is to deprive the owners of their legal rights, and this is to harm them. I admit that this has been a sketchy discussion of a topic that needs much more attention, but it is a topic that needs to be put on the table here.

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