Abstract

Scholar X, who would recoil at the thought of shoplifting a ballpoint pen from the campus bookstore, does not hesitate to copy software sold for thousands of dollars--without paying for it. Is there something morally wrong with X's action? If so, what is wrong, and why? This microcosmic moral problem has its counterparts on the level of billion-dollar industries, national defense, and international commerce. At stake is access to crucial information and technology, on the one hand, counterpoised against whatever incentives are optimal for stimulating the work of authors and developers, on the other. On the principle that the ethics of property becomes determinate only in the context of a specific legal system, I approach these issues by examining current U.S. legal practice in the protection of software ownership. At present in the United States there are chiefly three relevant legal mechanisms: copyright, trade secrecy, and patent. Two of these are given a clear rationale by the Constitution: "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries" . Accordingly, we may understand the U.S. intellectual property system as rule-utilitarian in its ethical basis. That is, to maximize utility in the form of scientific and technological progress, the system offers temporary monopoly to "authors and inventors" as an incentive toward such progress. As an exemplar of the issues, I examine in detail the Supreme Court decision Gottschalk v. Benson, which concludes that algorithms are not patentable. I then discuss Deborah Johnson's argument for modest policy of no-ownership of algorithms. I conclude that neither has made a convincing case and that there is no good reason to exclude algorithms as a class from patent protection and accordingly, from ethical prohibitions against theft. I relate this particular controversy to the larger issue of property rights in scientific discovery as this issue emerges out of the rise of modern science in the seventeenth century, and becomes problematic in a new way with contemporary technological developments