Helen Nissenbaum
For the remainder of my time I respond to Johnson’s second challenge, that since the laws of software ownership are reasonably good, illegal acts of copying are immoral because they violate the legal rights of owners.
I will argue that my position has not been correctly interpreted; it is not a plea for the toleration for casual copying on the grounds that it is done to achieve noble ends, even though the copier breaks the law and violates the property rights of the software’s owner. It is not therefore equivalent to a justification of stealing for a good cause. Rather, it is the plea for toleration for casual copying on the grounds that casual copying does not violate morally grounded property rights.
If we assume property rights to be a bundle of rights defining a relationship between an owner and a piece of property we would in any given case want to circumscribe those rights that are justifiably within the bundle. Nozick’s knife example vividly illustrates this point in showing that while the owner of a knife can do with it what she pleases, she may not place it in another’s chest. While I would argue that placing the knife in another’s chest does not fall inside the boundary of the bundle of rights an owner has over her knife, it would seem that my opponents would argue that since owners have the right to fully determine the use and enjoyment of their property, these rights are violated by restriction. Presumably, they would agree that the violation is justified. Similarly in the case of software, I argue not for the violation of software-owner rights, but that the restriction of casual copying does not fall within the bundle of rights at all. The boundaries suggested by those who decry casual copying are too inclusive, delineating a set of rights for software owners that is not morally defensible (and consequently should not be protected in a system of reasonably just laws.) In summary, while I do not dispute whether program owners are entitled to property rights over software, I do dispute the moral boundary lines urged by Johnson and others.
4.1 The Civil Disobedience Question Finessed
I plan to sidestep the question of civil disobedience with respect to casual copying. Many of our systems of law and social convention are only more-or-less good. To take a trivial case, let’s assume that traffic analysts are correct in thinking that a system of rules allowing right turns on red lights works better than one that doesn’t. Then the system before the change was not as good as it could have been. I think we should always work to make laws as just as they can be, but it is not clear that in each less-than-optimal case civil disobedience is justified. The driver who realizes the wisdom of turning right on red probably ought not engage in acts of disobedience.
My approach in dealing with the question of casual copying is not to decide whether civil disobedience is the best course of action for improving the system of laws, but rather, for now, to imaginatively set aside existing law and assume we have the opportunity to determine the law, from scratch, as we see best.
4.2 Copying and Murder: Unauthorized Copying is Not a Moral Category
Software copying defines an action category and unlike murder does not also define a moral category. Murder refers to a subset of killing that is morally wrong, while there are other categories of killing that are not. Similarly we expect some copying to be morally permissible, others perhaps not. On one end- fairly unproblematic I assume – we find copying for archival purposes, copying of freeware and shareware; that is so-called “authorized copying.” Some seem to have drawn the line right there, urging that any other copying, in particular, copying that is not authorized by the program’s owner, is wrong. In so urging they are making the desire of the property owner the sole consideration determining whether an act of copying is right or wrong, thus saying that while copying is like killing, unauthorized copying is like murder. Johnson does not fall into this group.
Johnson recognizes at least one set of considerations that can override a software-author’s preferences, namely the consideration of what “aspect” of software is in question. How we determine ownership rights over software, and consequently, the moral status of copying, will depend on whether we are looking at object or source code, a basic algorithm, or the “look-and-feel.” For example, Johnson has urged a weak form of ownership over basic algorithms, one that would surely grant authorial credit to their discoverers, but would deny them patent rights. She argues that the bottom line here is not the preference of the author, but whether the underlying goals of private ownership over intellectual products – to stimulate and encourage creativity and invention – are optimized. Johnson, is not in principle opposed to unauthorized copying of at least some aspects of software.
I take this line of thinking one step further in that I urge that there are other factors, contextual ones, that can also override the preferences of software owners thereby giving rise to additional cases of morally permissible unauthorized copying. Returning to our killing analogy, we observe that acts of killing take on varying moral hues depending on contextual factors, most notably factors like whether the killer had been mortally threatened by the person killed. It would be an unjust system indeed that lumped all killings together in a legal category and did not discriminate finely enough to recognized the difference between murder and self-defense. Turning back to unauthorized copying, I suggest that casual copying is a subset of unauthorized copying that, because of morally relevant contextual factors, is not immoral.
4.3 Morally Relevant Contextual Factors
In our contentious cases of casual copying we observe that, on the one hand, the owner of the software (that is, the intellectual property owner), desires that the copy not be made arguing on the basis of her right to control, and profit from her software. On the other hand, the casual copier wants to make the copy arguing on the basis of a right to be free of interference in her private domain to fulfill the “normal” obligations of responsiveness and kindness to friends and family. It appears that the solution to these cases comes down to balancing between two sets of conflicting rights: on the one hand the rights of property owners to the “use and enjoyment of their property” and to limit others’ access to it. And on the other hand we weigh in the rights of others to freely carry out actions within the bounds of normalcy. Those who judge casual copying immoral are adjudicating in favor of the program owner’s demands. And this, I argue, is unreasonably unlike existing judgment in analogous cases with other forms of private property.
If we turn to other forms of private ownership, we find that it is common practice to limit the extent of control an owner has over property in the face of competing demands. (Such balancing of rights is not, of course, restricted to property rights only.) Thus, an urban dweller who owns a piece of property must subject construction proposals to a strict set of zoning and planning guidelines. The guidelines respond both to the rights of the other town dwellers as well as to other more abstract principles such as historical preservation, or “fittingness” with the rest of the neighborhood. A landlord’s desire to inspect his property is curtailed by the tenants competing right to privacy. A musician’s right to play on his trombone is restricted by a neighbor’s right to peace and quiet. Such balancing of rights is not, of course restricted to property rights only.
With casual copying, I submit that the right of the purchaser of consumer software to be free of interference in responding to personal obligations of kindness and generosity in the private domain should truncate the competing claim of the software owner to completely determine copying practice. That is, full determination over who can copy and when is no longer one among the bundle of rights accorded to software owners.
Go to: Two Objections and Rejoinders
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