Two Objections and Rejoinders – A Plea for Casual Copying - The Research Center on Computing & Society

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Helen Nissenbaum

5. Two Objections and Rejoinders

I will discuss two objections to my position; the second of which is explicitly raised by Johnson in her comments.

5.1 In a Free Market Let the Market Decide Morality

Some have argued that in a free-market economy software owners have a right to place any conditions they please upon the sale of their product. Just as a lawnmower manufacturer could, as a condition of purchase, prohibit the lending of their lawnmower to neighbors, so a producer of a word processor can demand that no copies be made of the software except for archival backup, or could just as well demand that purchasers never use the software to write in favor of abortion. Consumers can express our objections to these terms by freely deciding not to buy the product. However, if they do buy, then they are morally obligated to carry out the stipulations.

5.1.1 Rejoinder: In Our Markets Individual Rights Are Protected

Even if in some “ideal” free-market economy world the conditions prescribed above would work, in the real world, and in current commercial and social context in which we live and in which we write, buy and sell software they are moot. Why? Because we treat the participation in public commerce as something of a privilege and demand that those who enter this domain play by certain “rules” and respect certain fundamental values. Whereas in the private domain, under the right to free association, an anti-Semite restaurant owner may refuse to allow Jews into her home, she can do no such thing in her place of business. We do not currently have an economy in which we leave to the free-market the adjudication of such matters of value.

In the case of commercial consumer-software, the sale occurs in the public, commercial, domain. We expect that those who participate in it will abide by certain norms, generally speaking ones that are mutually beneficial to both buyers and sellers. Sellers can expect a system in which their commercial interests are nurtured, while buyers can expect that basic rights and liberties will not be violated.

Consider another analogy which, while outside of the commercial domain, makes a similar point about the shifts in expectations from the private to the public domain. In our culture there are parts of our bodies designated “private” and related rules whose violation we take very seriously indeed. Thus you abhor the Peeping Tom who huddles under the window watching while you undress. However, should you choose to walk into a public building stark naked, you cannot demand that passersby avert their eyes so as not to violate your privacy, even though they will be observing the same body parts as the Peeping Tom. Similarly, when manufacturers place their products into the commercial realm for consumers to buy, insisting that the diskettes be bought and not copied, they are similar to the naked person insisting that passersby avert their eyes. Because manufacturers choose to place their products in the public domain, maximizing their commercial interest from exposure to consumers, they cannot at the same time expect to curtail or interfere with the “normal” behavior or their consumers.

Thus the protection of casual copying is a consequence of protecting consumer interests in the public commercial domain. It is worth noting that in legally protecting the will of software owners, we set up a ‘bad’ system of law that could only be enforced at a very high cost to individual freedom.

5.2 Stealing is Wrong; Even if Done For the Sake of Altruism

A second objection to casual copying, one raised today by Johnson, is that while altruism is surely a noble goal, being altruistic with stolen goods is not moral because the good produced almost never outweighs the harm done to the property owner.

5.2.1 Rejoinder: Casual Copying is Not Stealing

This objection is valid only if we can show that unauthorized copying is universally immoral; that is, that the only significant factor determining whether copying is moral is the desire of the program’s owner. In that case unauthorized copying would be analogous to stealing and the objection valid.

However, the assumption that the objectors make, and that is crucial to their conclusion, is the very issue I call into question. Earlier, drawing on examples from other domains for private ownership, I demonstrated that the control we accord owners over their property is not fully dictated by their desires, but tempered by other considerations. So, turning Johnson’s question back to her, why should software be different?

We appear to have reached a deadlock, with critics insisting that since the casual copying is not sanctioned by the owner, it must be immoral, and copiers claiming that their rights are being abridged by unreasonable restrictions. Is there a way out?

5.2.1 The Goal of Intellectual Property

I suggest that the way out of the deadlock is to look beyond owner preferences toward the very rationale for private ownership over intellectual property. Johnson offers a promising route in suggesting that the right to own software (a form of intellectual property) is not adequately grounded in “natural rights,” but rather in maximizing the general welfare. And the general welfare is maximized by ensuring an environment in which invention, productivity, and creativity will flourish.

Accordingly, when we determine the bundle of rights over software that we will come to identify as ownership rights, we take as the primary function the nurturing of the underlying value of a society in which creativity and invention are encouraged. Although frequently the bundle of rights will include the right to have all the owner’s preferences respected with regard to the use of the property, it need not always be so. Critics who insist that an owner’s preferences must always prevail make the mistake of identifying the owner’s preferences as the ends of intellectual ownership, and not simply one of the means of achieving the true end of intellectual ownership. Thus Johnson, in her discussion of algorithms, agrees that no matter what the preferences of the discoverer of a fundamental algorithm, patent rights are not morally justifiable.

Instead of stopping at the superficial picture of competing desires, we look beyond that and toward the enhancement of underlying social values. In evaluating the limits of software property rights, we must recognize that at stake are both the values of personal autonomy in the private domain and the creation of a climate that is conducive to productivity and invention. I submit that in the case of casual copying we are able to uphold personal autonomy while not significantly undermining our chances at an environment that stimulates creativity and invention. Put more bluntly, the closed scope of casual copying suggests only a minimal reduction in potential profits of software producers, while it realizes a significant need to respect the liberties and rights of consumers.

5.2.3 The Slippery Slope

Some opponents of casual copying argue that if we grant permission to casual copiers we open up a floodgate of copying. What about the more insidious and threatening forms of copying such as mass duplication of software by third parties for purposes of resale, making of multiple copies for free distribution, or even placing of software on a public file-server.

While I acknowledge the danger, I do not agree that judging casual copying morally acceptable implies the same for the other forms of copying. There are two, complementary reasons for this (for drawing the line): (i) because those forms of copying are bound to have significant detrimental impact on the commercial interest and consequently could threaten the underlying value of creativity and invention, while (ii) they do not involve countervailing claims analogous to those of the casual copier. Thus, I think we can reasonably place the prohibition of mass and impersonal copying within the boundary of property rights of software owners while placing the other, casual copying, outside of it.

It is interesting to note here the recent developments concerning laws governing the photocopying of written materials. In this domain, there is a move toward explicitly recognizing a distinction between personal copying and mass copying – making allowances for the former but outlawing the latter. This at least suggests that even if drawing the precise boundary between personal and mass copying is hard (and probably will not carry over precisely into the domain of software), it is a distinction that in principle is possible, and also a distinction that is worth respecting legally.

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