Microsoft on Copyright: an ethical analysis

James GS Wilson


This paper looks at copyright in software, in the light of Microsoft’s increasing attempts to make it impossible to run Windows on any computer without having paid the requisite licence fee.

If one looks at it from Microsoft’s point of view, then their goal is clearly laudable:

  1. Those who are using Windows illegally have no moral claim on Microsoft to allow them to use it.
  2. Microsoft are merely enforcing their copyright: they are just finding ways of preventing people from using Windows illegally.
  3. Illegal use of programs is unfair, as it reduces Microsoft’s revenues, and second, it leads to the losses being passed on to customers in the form of higher prices. The illegal user is behaving unfairly: he is taking advantage of all those others who have bought a legitimate copy.

The bulk of the paper consists in a reply to this underlying view of copyright. The central assumption of this view of copyright is that the copyright holder is unfairly harmed whenever someone copies the copyrighted entity outside of the terms that the copyright holder deems to be legitimate.

But it is not clear why we should accept this claim. I reply to it in three stages. First I clarify the nature of the legitimate claims that we should see copyright as involving; second I clarify the nature of the sort of entity that a computer program is, and what this means for the ethics of copying; and third I argue that there are important cases where breaches of copyright can benefit both the supplier and the users of a good.

The nature of copyright

This section argues that we must make a distinction between fundamental inalienable rights, and merely legal rights, which are granted by a society as a way of bringing about good consequences.

If a right is inalienable, then something is wrong as such when it violates the right. Where a right is merely legal, violating the right is not wrong as such: the morality of the violation will turn on the likely good or harm that will be caused by the violation.

It is highly implausible to think of copyright as an inalienable right. Hence the morality of breaching copyright turns on the question of the degree of good and or harm that will be caused by the breach.

Computer programs are inexhaustible and networked goods

I argue that there are two significant features about computer programs that questions of the harm of breaching copyright must take into account.

1. A computer program suffers no depreciation or degradation as more and more people use it. A computer program is an inexhaustible good, in that however many people make use of it, there is always as much and as good left for others.

2. Computer programs such as operating systems are networked goods: their value to their copyright holder, and their usefulness to their users is proportional to the number of people who use the program. This is because the greater the operating system’s market share, the more sense it makes for others to make programs to inter-operate with it; and the fact that others have made more programs to inter-operate with it itself increases the usefulness of the operating system.

When Breaches of Copyright are Beneficial

This section argues that it is only legitimate to consider oneself as being harmed by someone performing action X, if things would have gone better for you, in the circumstances you found yourself in, if that person had not Xed.

Microsoft’s case is that it is unfairly harmed by those who use Windows without paying them the license fee. So its presupposition is that things would go better for it, given the circumstances it finds itself in, if no one used Windows without paying the license fee. Their argument must be:

  1. If no one were able to use Microsoft Windows illegally, then each of the pirates would have to buy a copy.
  2. If each of the pirates bought a copy, then Microsoft would be richer to the tune of several billion dollars.
  3. Therefore Microsoft is harmed by software piracy.

But why should we accept premise 1? For eliminating the illegal use of Windows would not necessarily entail that all those who currently use it illegally would buy licenses: perhaps many would be too poor, too mean, or too ideologically opposed. They could refrain from using Microsoft products illegally by switching to open source alternatives.

This would be catastrophic for Microsoft: they would lose a large proportion of the networked good that they and they users of their software currently enjoy. Microsoft, and their customers would both be harmed. It follows that, under some circumstances, Microsoft would be harmed if people were prevented from using its software illegally.

But what about the real world situation: is Microsoft currently being harmed by the illegal use of its software? I argue that, although it is difficult to be certain, there is a good chance that Microsoft is currently benefiting more from the enhanced network effects than it is losing from the illegal use of its software.

If this analysis is correct, then it is not true to say that Microsoft is being harmed by illegal use of its software; and a fortiori it is not true that Microsoft is being unjustly harmed by illegal use of its software; and there would therefore be no reason to think such illegal use wrong.