June 2010 Edition
Computer Science Department, University of Cape Town
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Software has challenged the traditional notion of property and ownership. There have been two theories:
Consequentialist: Property rights are good because they lead to good consequences
Kantian: Everyone has the right to be autonomous. From this one can derive a right to property (Labour theory of Property)
The idea of natural rights is also applicable. This idea is derived from Locke’s Labour theory and states that a person has a natural right to what he/she produces. This can be applied to software as well. Recall the Bingo case. PPOS copied BOS and as such they stole Bingo’s labour. Bingo has lost the capacity to sell (and make money from) its creation.
Probably the most famous justification of property in general comes from John Locke, who argued that if one mixed one's labour with something then one had legitimate claim to it. He did, it must be said, place some restrictions on the right to appropriation. There had to be, for example, "enough and as good left for others". The main weakness to this argument is that it is not obvious why we should gain what we mix our labour with, rather than simply losing our labour. John Weckert (1996) illustrates this point:
'If I poured a can of tomato juice, which I owned, into the sea, clearly I would not thereby own the sea. I would merely become juice less.'
There have also been arguments against software ownership. The main point is that ownership of a program leads to ownership of the mental steps that make up the program. If such mental steps are owned then this means that others can not use them and this might interferes with freedom of thoughts (e.g. consider if someone were to ‘own’ the IF statement). Some people reject this idea because the level of knowledge that was considered is generic and common.
The absence of ownership might also cause bad consequences. Claim has been made that lack of ownership will lead to lack of incentive to produce software. However, software writers are not always in it for the money – consider freeware and shareware.
Find out more about freeware and shareware if you do not know these terms.
You can find a discussion of this Activity at the end of this chapter.
The idea of software ownerships allowed for application of copyright, trade secrecy and patent laws. Together, these encourage invention, innovation, new products and creative invention.
In general the answer is yes. However, copying might be allowed in the licence in certain including fair use and back-up purposes. In some countries, fair use of the copyrighted material is allowed for the following purposes:
Criticisms or comments
News reporting
Teaching
Scholarship or research
Some governmental purposes such as parliamentary or judiciary proceedings and commissions and statutory inquiries.
Fair use of proprietary software is not considered wrong or illegal in most countries. Additionally making a copy to prevent serious harm might also not attract legal consequence in many jurisdictions.
A very philosophical argument puts across the idea that the act of copying software in itself is not wrong because there is nothing intrinsically wrong with the act. It’s the act of using the copied software that is the problem. While the person who has been licensed for the software may not have been harmed (copying does not deprive the person of the procession) but the authors are deprived of payment for their labour.