1999 B.C. Intell. Prop. & Tech. F. 060503

Intellectual Property, Information, and the Common Good

Michael C. McFarland, SJ fnA

June 4-5, 1999

1. Introduction

Intellectual property is an odd notion, almost an oxymoron. Property usually refers to tangible assets over which someone has or claims control. Originally it meant land. Now it could also refer to a car, a milling machine, a jacket or a toothbrush. In all these cases the property claim is of control of the physical entity. If I claim a plot of land as my property, I am saying I can control who has access to that land and what they do there. I can build a fence around it, rent it out, or drill for oil on it. If a car is my property, I get the keys to it. I can exclude others from using it and use it myself for whatever I want, as long as I do not threaten the lives or property of others. Intellectual property is different because its object is something intangible, although it usually has tangible expression. The intellectual property in a book is not the physical paper and ink, but the arrangement of words that the ink marks on the paper represent. The ink marks can be translated into regions of magnetic polarization on a computer disk, and the intellectual property, and whatever claims there are to that property, will be the same. The owner of a song claims control, not of the CD on which the song is recorded, but of the song itself, of where when and how it can be performed and recorded. But how can you build a fence around a song? What does it mean to "own" an idea? Where are the locks that keep other people from "driving" it?

Intellectual property has always been closely tied to technology. Technology arises from intellectual property in the form of new inventions. But technology also supports intellectual property by providing new, more powerful and more efficient ways of creating and disseminating writing, musical composition, visual art, and so on. In fact it was the technology of the printing press that originally gave rise to intellectual property as a legal and moral issue. Before, when it took almost as much of an effort to reproduce a document as it took to create it, there was little need to impose limits on copying. It was only when inexpensive reproductions became feasible that it was seen as necessary to give authors more control over how their works were used by creating copyrights (Samuelson, 1991).

Computer technology has created a new revolution in how intellectual property is created, stored, reproduced and disseminated; and with that has come new challenges to our understanding of intellectual property and how to protect it. Of course computers have given rise to a whole new category of intellectual property, namely computer software. A major commercial program can take a team of one hundred or more highly skilled and highly paid programmers years to create and can sell for hundreds, or even hundreds of thousands, of dollars per copy. Yet someone with access to such a program can make a copy in moments at practically no cost. There is clearly great incentive for the user to make copies without paying for them, while the creator in many cases insists on being paid for each copy in order to recoup the investment in creating the product, plus a reasonable (or unreasonable) profit. In addition, as more and more traditional forms of intellectual property, such as writing, music and other sound, movies and videos, photographs, and so on, are being made publicly available on computer networks, they can be copied, manipulated, reworked, excerpted, recombined, and distributed much more easily than before. Without some form of legal and moral protection, the creator or "owner" of such creative products has much less control over how they are used and by whom, and less opportunity to benefit from them. The question is, how much protection is required, and when and to what extent should it apply? (Samuelson, 1991)

This paper addresses that question. First it presents some cases that illustrate the range of possible intellectual property rights. Next it examines the traditional justifications for such rights. It then critiques those justifications, not to refute them, but to show their limits. Finally it proposes a different way of looking at the problem, using traditional natural law ethics. This gives a more complete and balanced way of analyzing these cases.

2. Conflicts over Intellectual Property: Five Cases

The types of claims asserted over intellectual property have been many and diverse, some eminently reasonable, others seemingly quite extreme. The following cases give some idea of the diversity of such claims.

Case 1: Plagiarism. Educators, especially those in higher education, are seeing an increasing number of cases of plagiarism from the Internet and other electronic sources. Students will often take all or part of an article or essay that they have located online and hand it in as their own work, with or without additions or modifications of their own.

Plagiarism, of course, has been a problem for a long time, but the easy access to vast amounts of electronic information dramatically increases the possibilities, and the temptations. Not only is there more material available, but it is much easier to find and access. Furthermore it can be downloaded and included in a document with a few brief commands. It is not even necessary to retype it.

This violates the traditional canons of academic honesty. Students are assigned essays to sharpen their research and writing skills, and so that they will develop and express their own understanding and synthesis of the material. Copying someone else's essay does none of this. Furthermore it is almost universally accepted that when one incorporates another's work into one's own, one must clearly identify it as copied and give credit to the original author.

Case 2: Software Piracy. In April, 1994, an MIT student, David LaMacchia, was indicted for allegedly setting up and running a computer bulletin board that allowed people on the internet to exchange copies of commercial software. The system was set up so that anyone on the internet could post a copy of a program, which was then available for downloading for free by anyone who chose to do so. The site had become quite popular. Investigators claimed that they found software worth millions of dollars on the system. LaMacchia was accused of wire fraud and the interstate transportation of stolen property. If convicted he could have been sent to prison and assessed fines of up to $250,000. At the time this was billed as "the largest case of computer piracy in the country" (Rakowsky, 1994).

Ultimately the case was thrown out on a technicality. LaMacchia did not benefit monetarily from the arrangement and did not download any of the software himself. Therefore his offense did not come under existing law. However, the judge commented that "if the indictment is to be believed, one might at best describe his actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent and lacking in any fundamental sense of values" (Zuckoff, 1994). He suggested that the law needed to be rewritten to cover cases like this.

This is just one instance of the widespread practice of making and using copies of commercial software such as operating systems, word processors and other office productivity tools, games, and so on, without giving any compensation to those who created, published, distributed, and sold it. Software publishers estimate that more than half of all copies of their products in use in the United States are unauthorized. It can be as high as ninety percent in some foreign countries.

In the United States and most other countries, the producers of software can copyright it, meaning that they can control its distribution and use. It is illegal to make and use copies without authorization, and software publishers have won some substantial judgments against offenders, particularly large corporations. For the most part, however, they have not gone after individual users because the potential return is so small in relation to the cost.

Case 3: Repackaging Data and Databases. A company named ProCD published a CD-ROM containing a large compilation of telephone listings. A University of Wisconsin graduate student put all the data on the CD-ROM onto his Web site and charged users to access it. The company sued, claiming it had invested $10 million in collecting the data, putting it into an easily accessible form, packaging and marketing it, while the student was cutting into their sales and making profits himself with almost no effort (Samuelson, 1996b). ProCD won, but only on the narrow grounds that the student had violated the shrink-wrap license agreement that came with the CD-ROM.

If the student had obtained the information through a network or a third party, presumably he would not have been held liable. Traditionally databases have not been covered by copyright unless they involved some creativity in the way the data was selected or put together. This was established in Feist Publications, Inc. v. Rural Telephone Service Co. , where the plaintiff Feist took without permission directory listings published by Rural Telephone and included them in its own directory. The court found that no matter how much effort the telephone company had put into compiling the listings, it was not original and therefore not protected (Hayden, 1991).

There has been much debate recently about whether databases and the data in them should receive more protection than currently afforded by copyright law. The European Union, for example, issued a directive requiring that its member states pass laws giving database developers control over how their databases and data are used. The United States has proposed legislation with similar intent, both internally and for adoption by the World Intellectual Property Organization (WIPO) (Samuelson, 1996b). Individual concerns have also been asserting stronger claims to ownership of data. For example the National Basketball Association (NBA) has sued STATS, Inc. to prevent the latter from publishing minute-by-minute scores of NBA games while they are in progress, claiming that the scores and other statistics are the NBA's property. The NBA won at the trial court level, but the case is being appealed. If the NBA's claims are upheld, either in court or by legislation, it will have a tremendous impact on the public availability of, not just sports scores and statistics, but also stock prices, weather data, travel schedules, and so on.

Case 4: Reverse Engineering. Computer software never runs in isolation. It has to interact with hardware, with operating systems, and often with other applications. In order for it to work correctly, the developers must know in great detail how the other pieces of the system operate, and especially how they are designed to interface. Makers of hardware, operating systems, and other software generally publish specifications about how they are supposed to work and how to interface with them; but these are frequently incomplete, obscure and inaccurate. Developers often find they must study the actual code or hardware design of the system their product must work with, in order to get the interface right. Since the original code or design, as written by the designers, is usually jealously guarded, developers who need to learn about the system must take object code, the cryptic code that actually executes on the computer, or the actual chips in the case of hardware, and translate them back into human-readable form to divine how they really work. This is known as reverse engineering.

Reverse engineering is often a necessity for reliable software design. Reputable companies are very careful to extract only the specifications necessary for a correct interface and not to copy any of the original code itself. However, the practice has been challenged in a number of lawsuits, on the grounds that the company doing the reverse engineering could use the insight gained to produce a competing program without doing the expensive design work required in the original. To date courts have allowed reverse engineering, as long as certain reasonable restrictions are observed (Behrens, 1998).

Case 5: Copying in Transmission. The Internet, like most large computer networks today, uses a so-called "store and forward" architecture. Unlike a classical analog phone system, where there is a direct connection from the sender all the way through to the receiver, a message in a store and forward system is sent from computer to computer until it finally reaches its destination. No computer in the chain has complete knowledge of or control over the route the message will follow. It knows enough to select the next computer to send it to. For the sake of reliability, each computer keeps a copy of the message after sending it and holds the copy until it has received verification that the message has reached its destination. That way it can resend it if the earlier attempt failed. This procedure is used for all kinds of network transactions, including email, file transfers, and Web pages.

Generally the copying of messages in transit is automatic and transparent. The copy is made by the software as a routine part of the transmission procedure and deleted when the transaction is complete. However, it is certainly possible to keep the copy, and sometimes that is done, for diagnostic purposes, as part of a system backup, or to monitor the volume, nature, or content of network traffic. For example it is routine for some companies to save copies of all emails that pass through their computers.

Store and forward transmission is a well-established and universally accepted technology. However, with the growing concern over the protection of electronic intellectual property, it has begun to be questioned. For example the online version of The Wall Street Journal is meant to be available only to those who have paid for a subscription to it. Suppose a reader with a paid subscription is reading that day's Journal over the Web, the normal means of access. In addition to the copy on the reader's computer, there have been several other copies made on other computers to facilitate transmission. Ordinarily these will come and go without the notice of anyone, although it would certainly be possible to grab them and store them for use on the intermediate computers. Are the intermediate copies in violation of the copyright? As another example, suppose an employee of a large company emails a photo from Playboy to a co-worker without obtaining permission from the magazine, which is known to guard its assets jealously. The company's server archives all email, so not only does the recipient have an unauthorized copy of the photo, but so does the corporation. Does that put the company at the mercy of Playboy's lawyers?

These cases represent a range of possibilities that test the limits of intellectual property rights for electronic data. The first two seem fairly straightforward. Few would argue that taking someone else's work and passing it off as one's own without proper attribution is justifiable. In the second case too, it seems unfair to take and use software that has cost millions of dollars to develop and is sold for hundreds of dollars per copy, without giving some reasonable compensation to the developer. There are some who argue that all software should be free. But even among them, the most responsible voices at least, do not advocate the Robin Hood approach of taking and redistributing commercial software, but rather work to create viable alternatives in the public domain (Mann, 1999).

The other three are more problematical. Am I violating someone's intellectual property if I call a friend before the game is over to tell him I just saw Mark McGwire hit his seventieth home run, or if I look up the email addresses of several friends online, put them in my own database and send it to another friend? The practice of reverse engineering and the copying involved in store and forward technology both seem justified, indeed necessary, in some circumstances.

It was surprising, therefore, and to many disturbing, that the Clinton administration proposed in 1996 to extend intellectual property rights over electronically stored information far beyond current copyright law. Had the proposal been enacted, it would have made all instances of copying in our five cases illegal if done without authorization (Samuelson, 1996a). Fortunately many of the most worrisome aspects of the proposal were not accepted, either in the WIPO treaty of December, 1996 or in the new U.S. copyright law passed last year. However, there are powerful interests behind the push to extend intellectual property rights, particularly in the entertainment and software industries, so the pressure will no doubt continue (Samuelson, 1999). It is important, therefore, to try to understand the ethical basis for intellectual property rights in order to make sound judgments about their legitimacy and proper extent.

3. Philosophical Justification for Intellectual Property

Justin Hughes, in his masterful article, "The Philosophy of Intellectual Property" (Hughes, 1988), gives two basic justifications for intellectual property rights. The first, which he calls the Lockean justification, is often called the labor theory of property. According to Locke, a person acquires property rights to something by investing labor in it. For example if someone goes out into the forest, cuts down a tree and saws it into firewood, that wood becomes his property. Even though he did not own the tree or the land it was on and did nothing to plant the tree or make it grow, by putting the work into turning the tree into something useful, the product becomes his. He can use it as he wants, whether to sell or to heat his house, and, more importantly, he can exclude others from its use. This theory works well in a commercial environment. Not only does it offer a credible justification for private property, but it also provides incentives for people to work hard and therefore create wealth.

It is interesting that Locke never applied this line of reasoning to intellectual property; but the extension is obvious. It takes much thought, time and effort to create a book, a musical composition, or a computer program. Those who worked to create it have the strongest claim to the benefits of its use, over anyone else who contributed nothing to the project.

The labor theory is often used today, implicitly at least, to justify claims to intellectual property rights. For example software developers who want to discredit "pirates" who use their products without paying, cite the enormous time and effort that goes into developing a piece of commercial software and the unfairness of others benefiting from it without compensating the developer.

The other justification Hughes discusses is what he calls the Hegelian, or personality theory of intellectual property. In this view an essay, book, musical piece, or other creative work is an act of self-expression or self-realization, and thus is an extension of the creator's person. As such it belongs to the creator, not just as an object of possession, but as a part of the self. Thus basic human freedom demands that creators be able to control what is done with their creations, just as they should be able to determine other aspects of their personal lives. If someone writes a very personal poem for a special friend, for example, it should not be published or, worse yet, sold without the author's consent. That would seem like a violation of the author’s person, rather than just an unfair business deal.

The personality theory does figure in some current claims to intellectual property. For example, Richard Stallman, hacker supreme and passionate advocate of free software, has copyrighted his Emacs text editor and other parts of the GNU software project. The purpose of the copyright (or copyleft, as he likes to call it) is not so that he can sell it and be compensated for his labor, since he does not believe software should be sold, but to prevent others from selling it. He claims control over the conditions of use and distribution of his code to guarantee that a company does not incorporate it into a product that they then sell for profit. That would be taking Stallman's creative work and using it in a way that subverts his own values, which he sees, quite rightly, as a violation of his person. As another example, a songwriter who is an ardent environmentalist, might object strenuously to one of her songs being used in a commercial for, say, a logging company, even though the company was willing to pay royalties, because she did not want to be personally identified with the company's abuse of the environment.

The labor theory and the personality theory give a credible justification for at least some claims to intellectual property rights. In Case 1 above, for example, plagiarism is wrong under both theories. Under the labor theory, the student is claiming credit for work someone else did. The analysis under the personality theory is even more important. The student was asked to produce an essay that is a personal synthesis and analysis of the subject, not just to produce for the teacher the best possible essay, where the essay is regarded as a product whose origin is of no consequence. For the student to present someone else's work as his own is to misrepresent himself, to violate the integrity of his person. In the second case, as noted earlier, the tremendous investment of labor and capital (another form of labor) put into the development of commercial software gives the developers some right to control how it is used, including the right to charge for its use if they so choose.

The real question is how far those rights extend. If one invests a certain amount of labor in gathering a collection of addresses or statistics, does one therefore gain exclusive rights to that data, so that no one else can use them without permission? Does the "owner" of a creative product have absolute control of that product, even so far as to exclude beneficial or incidental uses that do not conflict directly with the owner's interests? On a basic commonsense level, we would say no. People other than the owners have an interest in intellectual property. For example facts that are commonly accessible cannot be owned by a few individuals just because they record them in a database. As another example, the sharing of design ideas and knowledge can increase efficiency in the integration and interoperation of different products, promote healthy competition, and lead to new ideas and greater creativity. In general, the more widely and efficiently intellectual products are disseminated, the more people benefit from them. It seems that there must be a balance between the legitimate claims of the developers of intellectual products and the public's interest in their widest possible availability (Samuelson, 1997). Without that balance, there is a danger of absolutizing the claims to ownership and control to the detriment of other interested parties, something we have noted in recent legislative proposals.

4. A More Balanced View

The fundamental problem with intellectual property as an ethical category is that it is purely individualistic. It focuses on the creator/developer of the intellectual work and what he or she is entitled to. There is truth in this, but not the whole truth. It ignores the social role of the creator and of the work itself, thus overlooking their ethically significant relationships with the rest of society. The balance is lost.

If we start with the idea of property, then the issue naturally becomes ownership and control, because that is what property is about. It is necessary to step outside that framework to get a more complete view of the issues. The way I propose to do that is to use the traditional, but now much neglected, theory of natural law.

Natural law, which goes back at least as far as Aristotle's Nicomachean Ethics , begins by asking what is the good. For Aristotle the good of something was inherent in its nature; it was the fulfillment of its purpose. Thus an acorn exists to become a tree. That is its purpose. It finds its fulfillment, its virtue, in growing into that tree. Human beings are by nature rational and social beings. Their fulfillment, then, and their happiness come from living rationally in society. Aristotle identifies a number of particular virtues that support this, the most important of which are friendship and love.

We might ask, then, what is the nature of all those creative products we call intellectual property, especially the ones that can be stored and transmitted electronically? What do a mystery novel, an autobiography, a demographic study, a table of stock prices, a photo, a painting, a piece of music, the design of an automobile, and a web browser all have in common? All are information in some sense. Anything that can be stored on a computer is information, including the computer programs that process that information. Software can be examined, manipulated and modified like any other information.

What is the purpose of information? It certainly can be self-expression, such as a personal reflection, a painting or a song. It can also be a product meant to perform some useful function, such as a machine design or a computer program. However, at an even more fundamental level, information is about communication. That is its purpose. The Oxford English Dictionary (Short Version), for example, defines information as "Communication of the knowledge of some fact or occurrence" and "knowledge or facts communicated about a particular subject, event, etc." If information is not the communication itself, it is something meant to be communicated. A story or essay is written to be read, even if only by the author. A song is meant to be heard. A program is meant to be run, which means it must convey some instructions to a computer and produce some discernible effect. In athletics they keep score because players and fans care who wins, and they keep statistics because they want to measure individual achievements. These are worthless unless they are communicated. The nature and purpose of information is communication. That is also therefore its good, its virtue. Any adequate ethics of information must take that into account.

Another essential characteristic of information is that it is dynamic and cumulative. Because it is the product of human thought and not itself corporeal, information is constantly changing, growing, combining, and creating offshoots. An intellectual work never springs pure and original from a single human mind. There are always influences. The language, the characters, the themes, and the structure of a novel all have their predecessors. Programmers always learn from other programmers, as anyone who has followed their intense conversations can appreciate. One of the strongest arguments for "free software" is not just that people do not have to pay for it, but that other programmers can examine it and learn from it. Software is not really free, according to free software advocates, unless its human-readable source code is available for distribution (Mann, 1999).

The purpose, or the good, of these intellectual works is to be communicated and shared. Of course ethics is about people, not databases or automobile designs. But knowing the purpose of information tells us something very important about the purpose, or the virtue, of information producers. It is not just production that matters, but communication as well. They are not fulfilling their purpose, that is, they are not virtuous, unless their work is shared in an appropriate way; and the more effective the sharing, the more virtuous they are.

I emphasize that the sharing must be done "in an appropriate way" because on a more specific level, different intellectual works have different purposes. It is not usually the purpose of a diary to be published as widely as possible. That in fact would be a perversion of its purpose in most instances. The purpose of a diary is to give an honest, intimate account of the life of the writer. Intimacy requires privacy, which means the writer needs tight control over who sees the diary. It would certainly be wrong for a friend who has been entrusted with it to publish it without the writer's permission. On the other hand, the main purpose of a scientific study is to increase the common store of knowledge. Even if there is a secondary purpose of recovering some of the costs of producing and publishing the study, the virtuous publisher will strive to make the study as available as possible to anyone who would benefit from it.

This approach allows us to make sound, balanced judgments about cases such as those at the beginning of this paper, because it allows us to consider each in light of both general principles and the particular characteristics of the case. In the first case, as we said earlier, the purpose of the paper is for the student to achieve a personal understanding and synthesis of the subject under consideration and to communicate that effectively to the teacher. Simply finding and submitting someone else's work subverts that purpose. It is a failure.

Commercial software of the type considered in case 2 is more complex ethically because it has multiple purposes. It is meant to perform useful functions for its users. Without that it is worthless. But it also represents a large capital investment and tens or even hundreds of person-years of labor on the part of its developers. The most just, and therefore the most virtuous, distribution scheme would be the one that would provide maximum value to the user community while giving the developers enough compensation to make their labor and investment worthwhile. We still have not found the ideal solution; but we can be sure it is not for a few people to buy the program and make it available to hundreds of thousands of others who contribute nothing; nor is it for the developers to charge outrageous prices because they happen to have a monopoly.

In case 3 the street addresses are by their nature public. They exist to help people locate homes and businesses. If they are not public they cannot fulfill their purpose. If someone invests a great deal of labor and creativity to make the data available in a particularly useful and attractive way, they might be able to sell that particular arrangement of the data. But they should not be able to prevent someone from sharing the data itself. Batting averages have that same public character; the same analysis applies.

As we said earlier with regard to case 4, software cannot run in isolation; and software cannot be developed in isolation. It requires extensive information sharing for proper interfacing. Furthermore, like any design process, software development flourishes where there is a free sharing of ideas and experience. That is why patent holders are required to disclose fully their design in exchange for exclusive use of it over a limited period. Of course commercial software development is also competitive, and it would be wrong for a company to copy another company's program and sell it for less. But beyond that there should be as free an exchange of information and ideas as possible.

Finally, information services like the one described in case 5 exist to communicate information. Those that rely on networks to do their business also rely on the network technology. If the technology requires making and storing copies of the information, that is quite justifiable. It is the nature of the communication. Of course the purpose of those copies is to facilitate communications. Any other use might well be challenged.

5. Conclusion

Producers of information who want to maximize their control over its use, and therefore their ability to profit from it, find intellectual property a very attractive concept because it focuses primarily on the producers and their claims of ownership. These claims are not invalid. As we saw there are some convincing justifications for them. But they are incomplete.

To get a more adequate perspective, we need to step back and ask about the significance and purpose of this information. When we do this, we gain a very important insight that tends to be lost when we only think in terms of rights and property. That is that information is about communication; it is meant to be shared. Ethical policies for the use and distribution of information must take into account the social nature of information, even as they recognize the legitimate claims of the producers. It is in this balance, Aristotle's median, that virtue is found.

This approach has two advantages. First, it gives a theoretical basis for considering the interests of the rest of society, in addition to those of the developers. That is harder to do when we just talk about property, because those who are not producers have no claim to property if they have not somehow invested in it. Yet as we have seen there are some types of information that ought to be freely available, so non-owners do have a claim on it. Of course a utilitarian system would also take into account the overall good of society. But utilitarianism does not recognize individual rights; and individual rights are important. For example a utilitarian analysis might find that it is good to publish a private diary because many people would enjoy it, outweighing any embarrassment to the writer. But that does not seem right, because it violates basic values of human respect.

The other advantage is that this natural law approach allows a nuanced analysis of individual cases, while still being guided by general principles. We can differentiate between a personal diary and a stock market report, between an original program that needs to work in the same environment as a competitor and a clone. We can make useful judgments in real cases.

Admittedly this approach does not lead to any startingly new conclusions. In a sense it just tells us what we already know. That is, intellectual property claims can only go so far. They must be balanced against the common good. Moreover there are different types of intellectual property and they must be treated differently. But the theory’s consistency with sound common sense is its virtue. The ultimate standard for ethics is the collective moral wisdom of the community. If a system gives us the same conclusions as the best minds in our society, it is probably a pretty good system. That is more than can be said for some of the more extreme proposals that have been advanced in the name of intellectual property.



Michael C. McFarland, SJ
Gonzaga University
E. 502 Boone Ave.
Spokane, WA 99258
509.323.5522 (voice)...509.323.5199 (fax)...mcfarland@gem.gonzaga.edu


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© 1999 Michael C. McFarland, SJ. Published with permission of the copyright holder.

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