Software Ownership and Natural Rights

Richard Volkman


It may seem as if intellectual property rights in computer software are especially difficult to justify within the Lockean natural rights tradition. Some have even contended that software is so unlike the other products of labor as to require totally new ways of thinking about ownership. I will argue that this is not so. To the contrary, there is a very simple and straightforward argument from within the natural rights tradition that justifies exactly the sorts of rights usually conceived in terms of copyright or patent. My interest is to investigate the moral force of such rights in terms of the moral force of promise-keeping and contract. It is not my intention to explore the tangled legal issues surrounding copyright, patent, or contract law. However we should choose to spell out the precise legal rights of a programmer, I contend that the general moral grounds of those rights can be readily found in one’s natural rights to life and liberty, and the correlative rights to voluntary exchange.

Far from being a troubling case for the natural rights tradition, current practices and expectations in the sale and distribution of software are easily accounted for in terms of the natural rights view, and these transactions may actually serve as a paradigm for property relations on such a view. At bottom, we should regard the distribution of software as typically involving an explicit contract limiting what one may or may not do with that software. That one has the right to require acceptance of these conditions follows from basic commitments to one’s freedom to share or not share the products of one’s labor as one sees fit, at least under normal circumstances. These limits can and often do extend to restrictions against unauthorized copying or reverse-engineering of a piece of software. The moral force of keeping such promises is obvious in light of various examples of promise-making in other contexts.

Importantly, this approach to the ownership of software extends to our intuitions about the explicit and implicit terms and conditions of use often associated with non-commercial and quasi-commercial software, such as GNU/Linux, WarFTP, and other freeware and shareware licensed software. This view of intellectual property is partly drawn from and informed by the current debate about Open Source and “copyleft” software, and has important implications for that debate. In particular, GNU-founder Richard Stallman’s account of the advantages and even the definition of “free” software seems to be at odds with some of the claims of Linux-author Linus Torvalds and Eric Raymond, president of the Open Source Initiative. The account of property outlined here illuminates the philosophical underpinnings of this debate, and can be found underlying some of the claims of each of the participants. Thus, the account corresponds to widely shared intuitions about software ownership, and also suggests a way of resolving the dispute.