The legitimacy of intellectual property (IP) rights is an ongoing controversy in Computer Ethics. In this paper, I argue that the debate over the legitimacy of IP rights has been incorrectly focused. I argue that it has been both...
moreThe legitimacy of intellectual property (IP) rights is an ongoing controversy in Computer Ethics. In this paper, I argue that the debate over the legitimacy of IP rights has been incorrectly focused. I argue that it has been both theoretically demonstrated and practically established that retaining IP rights is ethically permissible. However, I argue for a virtue ethics where renouncing IP rights is an act of supererogation rather than obligation. Particularly as concerns software, I argue that this cultivates a new, MacIntyrean virtue, which I refer to as, “hackishness.”
Spinello outlines three primary arguments for IP rights. These derive from:
1. Locke
2. Hegel
3. Bentham and Mill
The Lockean argument has received a great deal of attention already (Tavani 2005), but essentially argues that one is entitled to derive benefits from the fruits of one’s labors. Insofar as one is an author or programmer, IP rights are the only way to secure those profits, and are therefore legitimate. However, Locke ties these profits to one’s livelihood – they do not extend beyond the level needed for sustenance (which, broadly interpreted, may mean a modest living). Hegel’s argument, as outlined by Spinello, is considerably different from Locke’s. Hegel contends that an artisan invests some portion of his or her personality in the work that the artisan creates. Because the artisan has a right to autonomy and self-determination, and the objects of one’s craft are a part of one’s personality, one must retain a right of control over a work’s use, or at least a right to maintain the integrity of the work. Insofar as IP rights are the only way to guarantee this control, they are legitimate.
The Utilitarian (or pragmatist) argument is the view articulated in the US Constitution. “The Congress shall have power … to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Art. 1 §8) It argues that the limited monopoly given to creators of works promotes innovation (“the Progress of Science and useful Arts”), which is in the best interest of all concerned. Insofar as IP rights spur innovation and discovery, then, they are legitimate. The novel virtue, “hackishness”, I am arguing for is first articulated by Stephen Levy (1984) and continued by writers like Eric Raymond (2008) and Cory Doctorow (2007). Levy gives several examples of what he terms the “Hacker Ethic” and I later use as the basis for the “hackishness” virtue. Eric Raymond presents a similar description, but while Levy writes from a perspective outside the Hacker culture, Raymond writes as an elder statesman from within the culture. Doctorow’s work is intended for young adults, and, in addition to its concerns
about Privacy, his novel Little Brother is a hortatory work, encouraging young adults to be involved with programming by giving a description of its joys.
I present a brief overview of the phenomena associated with the exercise of the virtue, and I give a detailed description of the novel combination of attitudes this virtue entails, particularly as regards Computer Programming and Software Creation. I then argue that programming fulfills the criteria set forth by Alasdair MacIntyre (1984) for a “practice.”
1. The activity is coherent and complex.
2. The activity is socially-established and cooperative.
3. There are goods internal to the activity.
4. There are standards of excellence internal to the activity.
5. These goods are realized in performing the activity excellently.
6. Human powers and goods are extended by performing the activity excellently.
Complexity and coherency are trivial to establish. I refer to modern code-sharing websites like SourceForge as well as historical communities like the Homebrew Computer Club in Levy’s work to establish the second criteria. The existence of goods internal to the activity is typified in Levy’s assertion that the sole driving motivation of the hacker is to “create awesome software.” (1984; 381) The standards of excellence in hacking are extensively discussed by Raymond (2003), who gives an exceedingly thorough treatment of what constitutes good UNIX software. All three authors give an excellent treatment of the changes which hacking instills in a person. Far from merely instilling a technical skill set, the truly hackish person derives intense joy from solving interesting problems, and takes joy in enabling other people to solve interesting problems. Thus, the hackish person extends human powers and the human good by conquering difficult computer problems and providing the means for others to do so as well.
Thus examined, I conclude that computer programming is a practice, and its most excellent exercise, hackishness, is a virtue. I then examine three major contemporary IP frameworks to determine their consonance with the virtue of hackishness:
1. Full United States Copyright Protection
2. GNU GPL
3. Creative Commons
Next, I examine how a person demonstrating this virtue might act within each of these three frameworks. I conclude that Full Copyright Protection, as established earlier, is legitimate to protect economic well-being of a person (programmers must eat, after all), but traditional proprietary programming becomes problematic because it doesn’t encourage the social component of code-sharing identified above. The GPL suffers from precisely the opposite dilemma – although it encourages the virtue of hackishness exceedingly well, it becomes problematic in that, with a few exceptions (e.g., those fortunate enough to work for companies like Red Hat), it does not answer Bill Gates’ objection: “Who can afford to do professional work for nothing?” (Levy 1984; 226) It also falls prey to the Hegelian objection that a programmer has no control over the portion of his or her personality invested in the code. I argue that Lessig’s Creative Commons framework appears to take the best approach – by permitting, for example, free use of software for noncommercial activity, but requiring corporations to deal individually with the programmer, the programmer can share his code with the world at large, and still derive a basic living. The attribution and (if necessary) no derivative works clauses allow the Hegelian to maintain control over works, if desired.
Finally, I demonstrate how the hackish virtue leads to acts of supererogation for each of the three justifications for IP rights. Against the Lockean, the hackish person replies that, a modest living having been secured (through either full IP protection or Creative Commons frameworks), the joy derived from programming is the only payment required – the proviso has been fulfilled. Against the Hegelian, the hackish person replies that fulfillment can also come from the creative evolution of works, something that is impossible if rigid controls on use are maintained. Finally, the pragmatist’s argument has already been answered, by the description of what it means to be hackish – those who cultivate this virtue are driven by the desire to innovate. It doesn’t need to be induced – merely supported. Insofar as there is adequate support available, hackish people will innovate, regardless. Lastly, I speculate on future work, including applying this virtue to other forms of IP.