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Software Ownership and Natural Rights
Richard Volkman
Abstract The moral force of
the prohibition against uncompensated copying and use of software is traced
to a natural right to the product of one’s labor, as this is guaranteed
by one’s right to life. Important implications of this view for the
ideological debate among proponents of “free software” or “open
source” are explored.
Do the authors of software have a right against uncompensated copying?
When it comes to offering an account of what rights individuals have,
anyone would agree that a right to life is among them, that the taking
of another’s life constitutes a serious infringement of that person’s
rights. Thus, it is a promising strategy to start our investigation by
interrogating the right to life. What is the nature and scope of this
right? What other rights does it entail? I begin by defending a deep connection
between life and liberty. This connection is then extended to include
a right to the product of one’s labor, and that will amount to a
right against uncompensated copying. Finally, it is shown that acknowledging
such a right is not inconsistent with the commitments of those who advocate
“open source” software.
Clearly, a merely biological sense of “life” is not sufficient
to explain the importance of the right to life. If someone kidnapped the
Pope and brainwashed him so that all his psychological states and ways
of responding to the world were identical to the states and responses
of Bertrand Russell, it is clear that some extremely important right of
the Pope’s was violated. This would be clear even if we thought the
resulting person was an improvement. It doesn’t seem right to say
that we would have made the Pope a better (or worse) person, since the
person now before us does not seem to be the Pope at all. We have obliterated
the Pope and replaced him with an ersatz-Russell, thereby ending the Pope’s
life, even though the same biological organism is still in possession
of its biological life. Surely the Pope would have lost nothing of more
importance to him if he had been murdered outright rather than “merely”
reprogrammed. This strongly suggests that the kind of “life”
that is morally significant is a person’s biographical rather than
biological life.
A biographical life, as the phrase implies, is constituted by that
person’s story (as in “the story of my life.”) It generally
includes a person’s actual activities in the course of his biological
life. But there is something more to having a biographical life than the
mere continuity and conjoinment of various psychological and physical
states. In addition, it must be mine, in the sense that I identify with
it. That is, I understand and justify it as something that comes from
the values, relationships, and projects that tell me what my life is all
about.
Hence the significance of liberty for having a biographical life.
The total slave, one whose every thought was dictated and controlled by
someone else, could not have a biographical life (cf. Rachels and Ruddick,
1989). Every action is directed by the projects, values and desires of
someone else. So, the right to life entails that every person has claims
as regards everyone else that they not interfere with her actions in pursuit
of her own life, insofar as her actions do not interfere with the ability
of anyone else to lead their lives. Here we have the deep identity of
the right to life and the right to liberty associated with classical natural
rights theorists like John Locke. The third part of the classical trinity-property-remains
to be shown.
Intellectual property is usually justified on the utilitarian grounds
that we need to protect innovation by guaranteeing innovators a market
return on their investment of time and effort. Otherwise, no one will
create intellectual property. But this argument turns on empirical claims
that are seldom examined or defended. Indeed, it is hard to imagine how
such a defense could proceed, given that there is no easy way to conduct
the relevant experiments. Pamela Samuelson (1989) argues that faith in
the efficacy of copyright protection may be misguided, especially when
the efficiencies of protecting innovation work against the efficiencies
of robust competition in an intellectual property system designed to grant
monopolies.
This way of questioning the utilitarian foundation of intellectual
property takes an even more radical turn in the hands of Richard Stallman.
Stallman argues, with no less empirical data than the others (viz., none),
that allowing proprietary ownership of software actually has tremendous
negative consequences. According to Stallman,
proprietary software undermines utility in a number of ways. Fewer people
can use proprietary software. Furthermore, users of proprietary software
are generally not privy to the source code that makes it work, and are
therefore unable to fix or adapt the program or learn from it. Added to
these direct costs, ownership of software encourages a selfishness that
compounds the costs of proprietary software. “Signing a typical software
license agreement means betraying your neighbors.” (Stallman, 1995)
The better solution, Stallman maintains, is to make software “free”
by removing intellectual property protections.
He maintains that this will not threaten innovation in software, since
there are sufficient incentives internal to the art of programming to
motivate dedicated programmers, who will be better educated and their
programs more widely accessible and customized. Any reduction in the number
of programmers and programs is offset by the improved quality and productivity
of each. If Stallman is right about these empirical matters, then the
balance of utilitarian reasons clearly lies on the side of doing away
with intellectual property protections on software.
But does the morality of paying the producers of software really turn
on such empirical issues? It is worth examining just how “free”
the individuals in Stallman’s imagined world would be. Would talented
programmers be free to pursue more lucrative careers, in lieu of the more
modest sums they could earn writing free code? Presumably so. Any other
answer would be a clear violation of their right to life, effectively
enslaving them to the needs of software consumers. But allowing programmers
to make these choices admits the principle that one may withhold one’s
labor unless the conditions of use meet one’s own expectations. If
I have a right to withhold my labor unless conditions for use meet my
expectations, then I may withhold my labor unless I am compensated in
a manner of my own choosing. Furthermore, I can withhold my labor unless
the purchaser agrees not to redistribute my product. If you do not like
my conditions, you are free to write the program yourself, or to find
someone who will do so for a lower price. But I have the right to determine
the conditions under which I will work. After all, I am the one who is
to invest a part of my life into this
project. “I put my sweat, my heart, my soul into this program.”
This is the first premise of what Stallman calls “the emotional
argument.” He maintains that it merely reflects a shallow feeling
of attachment for the object of one’s labor, not any genuine moral
claim. But this is clearly a straw man. The real argument has nothing
to do with emotional attachment. If I have a right to choose for myself
how and when and under what conditions I will act, then I am well within
my rights to refuse to act except under the condition that you pay me.
I am also at liberty to withhold my labor unless you agree not to use
the product of my labor in ways I forbid. This does not reduce or infringe
your rights in the least, since you are just as free as before to do anything
you want in pursuit of your life. But you have no right to my help in
the pursuit of your life.
So, you have no claim on the product of my labor, at least where that
product would not exist were it not for my actions. But it will be objected
that the product of my labor does not
come into existence simply from my labor alone. There were, after all,
the initial resources that went into its creation. My labor cannot be
used to make a clay pot without first having the clay. Even if I am in
some sense entitled to the pot, which wouldn’t exist were it not
for my labor, I am not entitled to the clay from which it is made at least,
not by the above argument. Since my labor alone cannot produce anything
without the introduction of natural resources, my claim over the product
of my labor may be overshadowed by the claims of others over those natural
resources. The traditional answer to this difficulty is Locke’s
(1690) theory of “labor-mixing”:
Whatsoever then removes out of the state that nature hath provided, and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property… at least where there is enough, and as good, left in common for others.
But what is the precise nature of this “mixing”
of one’s labor? If I have “joined” my labor to something
unowned, why should I now own the previously unowned thing? Is it not
just as reasonable to suppose that I have lost ownership of some of my
labor?
These difficulties are readily cleared away by applying
the right to life as it was unpacked above. Since the right to life generates
claims that no one interfere with my leading my life, I will have a claim
that no one prevent me from using any natural resource that is not significant
for another person’s pursuit of his or her life. When I make something
out of that resource, the product of my labor is in practice inseparable
from it. Since I have a claim that no one use the product of my labor
without my permission, and since no one can use this resource without
using the product of my labor, I have a claim that no one use this resource.
That is, I have the exclusive right to use this resource; I now own it.
Since no one had a claim over the use of this resource prior to its appropriation,
I have violated no one’s rights in coming to own it, and anyone else
who tries to use it now will violate my rights.
The condition that no one else has a prior claim over
the use of a resource embodies what has come to be known as the Lockean
Proviso that one leave “enough and as good.” Each of us has
a claim that no one interfere with one’s actions in pursuit of one’s
life. If my appropriation interferes with the life of another, then he
or she has a claim that I not appropriate that resource. For most ways
of life, mixing labor with resources is a means, not an end in itself.
So, if my appropriation does not diminish the value of a person’s
labor, then the Proviso does not rule out that appropriation. It should
take no more time or effort to achieve the same ends as it was possible
for that person to achieve before the appropriation took place. Thus,
if one is unable to appropriate anything but is able to sell his/her labor
at a price that will buy the same or more goods in trade as s/he could
have made with his/her labor had there been resources to appropriate,
then that person cannot complain that the Proviso was violated.
It is clear that the physical resources required for the manufacture
and distribution of software are abundant and their appropriation does
not violate the Proviso. The value of a disk comes from the data that’s
on it, not from the natural resources that make it up, and that data is
entirely the product of someone’s labor in putting it there. But
the data itself cannot be owned without violating the right to life of
those who want to use those ideas. No one may own an idea. Even if it
is granted that I have a natural right to the products of my own mental
labors, that is different from the right to exclude
everyone else from those products. My rights to life and liberty guarantee
that you may not interfere with my thinking and using an idea, but your
rights surely guarantee you the same protection from me, and it makes
no difference if I have come to think the thought first.
If I cleverly think up the first use of the wheel, I might make a living
selling wheels. No one may deprive me of a wheel I have made from justly
appropriated resources. But there is no natural right that others not
use the idea to make their own wheels, or that they not compete with me.
To the contrary, they have the right that I not interfere with their pursuit
of their own lives, and depriving them of the use of this idea would surely
deprive them of something valuable. Any appropriation of an idea violates
the Proviso.
But the prohibition against uncompensated copying and use need not derive
solely from an alleged exclusive right to the product of one’s mental
activities. Rather, the right to contract, in combination with the rights
to the software media, reveals a legitimate moral claim against unauthorized
use. If I have written a program, I cannot claim any exclusive rights
to the ideas in it. Some things – like people, scenic views, and
ideas – simply cannot be owned, as
a matter of the internal logic of ownership. But there is no requirement
that I share my thoughts with you. Instead, I may let you use them under
certain conditions, and among those conditions I might require that you
not allow anyone else to make a copy of the disk. This bargain in no way
diminishes your rights, since you are just as free as before to write
your own program. The Proviso has not been violated.
So it is not permissible to copy your neighbor’s
software. Not only would your neighbor be violating a contract with the
software provider, but, given the conventions associated with the conditions
of use for software, you would be acting immorally yourself. The words,
“I give you my word that…” or “I promise that…”
are merely a conventional way of inviting reliance and accepting responsibility
for producing the required outcome. In the case of intellectual property,
the conventions in question are clear enough even without explicit language.
The institution of shareware depends on the widespread acceptance of these
conventions. Where the conventions governing software ownership are unclear,
they can be legitimately established by law. Thus, there is still a great
deal of work to do in filling out the best legal approximation of these
natural rights for a given society. But these issues are not legal all
the way down. There is a legitimate moral force, akin to the moral force
of keeping a promise, behind the requirement that I not copy my neighbor’s
software.
This is a version of what Helen Nissenbaum (1995) has called the “strong
no-copy position.” Echoing Stallman, she rejects this view because
it rules out giving a copy of one’s software to a friend as a gesture
of generosity or kindness. But giving a copy of a proprietary program
to a friend is not generosity. You may not displace the costs of your
“generosity” so they land squarely on the shoulders of someone
else. If you want to be generous, buy
your neighbor the software. Giving a copy to your neighbor is not an act
of generosity, nor is refusing to copy it an act of selfishness. It is
fulfilling your fair and voluntary obligation to the maker of that software.
This is the proper response to Stallman’s concern
that proprietary software encourages selfishness. Having “free software”
must not come at the expense of having free people. Programmers need to
be free to follow their own conscience, to work on the projects that they
deem important, for their own reasons, and this requires that they be
able to put limitations on the use of their software as they see fit.
This is exemplified by WarFTP, a freeware FTP server by Jarle Aase that
is distributed under the condition that it not be used “by governmental
institutions and mainstream political parties.” (Aase, 1997) The
point of these conditions is to avoid implicating the author in activities
contrary to his principles. His right to require these conditions is guaranteed
by the right to life, but Stallman’s view implies that this software
is not free and is therefore not to be permitted.
Giving programmers this freedom to pursue their own
visions, under their own terms, is better for programmers and for society
at large, as open source advocate Eric Raymond (1997) points out in his
seminal “The Cathedral and the Bazaar.” Raymond argues that
open source is better for developing and maintaining quality software
due to its open-ended, self-correcting, and distributed development. Instead
of building ponderous, centrally planned cathedrals, in which every decision
is carefully administered by a few “experts,” it is more effective
to decentralize the process and let there be a free-for-all of innovation
and change as in the market or the bazaar.
The principle at work here is hardly a totally original discovery. It
has been embraced and defended by free market economists like Adam Smith
and Friedrich von Hayek. “The Linux world behaves in many respects
like a free market or an ecology, a collection of selfish agents attempting
to maximize utility which in the process produces a self-correcting
spontaneous order more elaborate and efficient than any amount of central
planning could have achieved.” (Raymond, 1997) This ode to the invisible
hand could be right out of Hayek. But such a system cannot exist without
individual claims to this or that piece of work, so the self-interested
and distributed actors can be compensated. In classical economics, this
compensation is in the form of cash reward. For the open source movement,
compensation is in the form of reputation – what Raymond calls “egoboo.”
Either way, the right to be compensated for one’s labors is paramount.
It is this compensation that generates the spontaneous order that is so
much more efficient and sensitive to dispersed knowledge than central
planning.
Stallman and others worry about the selfishness they
see in such a system, but their concern is misplaced. As Raymond suggests,
Many people (especially those who politically distrust free markets) would expect a culture of self-directed egoists to be fragmented, territorial, wasteful, secretive, and hostile. But this expectation is clearly falsified by…the stunning variety, quality and depth of Linux documentation…Evidently Linux’s free market in egoboo works better to produce virtuous, other-directed behavior than the massively-funded documentation shops of commercial software producers.
This contrasts directly with Stallman’s approach
to “free software.” Stallman writes, “…essential pieces
of GNU software were developed in order to have a complete free operating
system. They come from a vision and a plan, not from impulse.” (Stallman,
1999a) But even Stallman recognizes the importance of connecting software
products to the persons responsible for them. What else could explain
his insistence that we not speak of “Linux” as if it were a
complete OS? Rather, he points out (1999b), we should speak of “GNU/Linux,”
since many of the tools and programs that make the bare kernel written
by Linus Torvalds into a useful system were originally written and distributed
by Stallman’s GNU project. He is surely correct. Stallman and his
comrades have a right to get credit for their work. But the moral intuitions
that underlie their right to get credit equally justify rights to intellectual
property, if one prefers cash to credit.
And this right to property is in fact quite important for making good
software. For the marketplace to function best, the bazaar needs to extend
beyond the confines of those for whom compensation is reputation. We should
embrace the labors of as many actors as possible, on whatever terms they
prefer. Let the market decide between them. Torvalds has commented on
this, “I tend to think that some things work better as commercial
software, mainly because a lot of the program is that ‘final polish’
that commercial software is so good at. For example, user interfaces are
usually better in commercial software.”
(Torvalds, 1998) If open source improves in these areas, it is in an excellent
position to win in a free and open software market, and we will all be
the winners by having the best possible software.
But until open source software improves, we need commercial
software. If programmers aren’t interested in writing the interfaces
we end-users want without financial reward, if that’s not what they
want to do with their spare time, they do not deny us anything we have
a right to. If they are interested, it is just that we give them the financial
rewards they ask for in exchange for doing the work that interests us
instead of the work that interests them. Protecting the product of their
labor from misappropriation by others allows them to sell their labor
on the free market, resulting in a system of maximum competition, in a
truly open and free bazaar, where we all win on our own terms. That is
moral force of intellectual property.
References
Aase, J. (1997), WarFTP FAQ, http://war.jgaa.com:8
080/faq/alt.comp.jgaa.faq.html, 3:40P EST June 29, 1999.
Locke, J. ([1690] 1980), Second Treatise of Government,
ed. C. B. Macpherson, Hackett Publishing Co.
Nissenbaum, H. (1995), Should I Copy my Neighbor’s
Software?, in Computer Ethics and Social Values, ed. D. Johnson and
H. Nissenbaum, Prentice Hall.
Rachels, J. and Ruddick, W. (1989), Lives and Liberty, in
The Inner Citadel, ed. J. Christman, Oxford University Press.
Raymond, E. (1997), The Cathedral and the Bazaar, http://www.tuxedo.org/~esr/writings/cathedral-bazaar/,
3:59P EST June 29, 1999.
Samuelson, P. (1989), Innovation and Competition: Conflicts
over Intellectual Property Rights in New Technologies, in Owning
Scientific and Technical Information, ed. V. Weil and J. W. Snapper,
Rutgers University Press.
Stallman, R. (1999a), The GNU Operating System and the Free
Software Movement, http://www.oreilly.com/catalog/opensources/book/stallman.html,
3:00P EST June 29, 1999.
– . (1999b), Linux and the GNU Project, http://www.gnu.org/gnu/linux-and-gnu.html,
3:47P EST June 29, 1999.
– . (1995), Why Software Should be Free, in Computer Ethics and
Social Values, ed. D. Johnson and H. Nissenbaum, Prentice Hall.
Torvalds, Linus. (1998), The Pragmatist of Free Software:
Linus Torvalds Interview, by H. Yamagata, http://www.kde.org/food/linus.html
, 3:54P EST June 29, 1999.
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