From the Wright Brothers to Microsoft: Issues in the Moral Grounding of Intellectual Property Rights

This paper considers the arguments that could support the proposition that intellectual property rights as applied to software have a moral basis. Undeniably, ownership rights were first applied to chattels and land and so we begin by considering the moral basis of these rights. We then consider if these arguments make moral sense when they are extended to intellectual phenomenon. We identified two principal moral defenses: one based on utilitarian concerns relating to human welfare, the other appeals to issues of individual autonomy and private control. We conclude that intellectual property rights could not be defended from a moral perspective that emphasizes autonomy and individual control because copyright and patent restrict fundamental freedoms to transfer and redistribute one’s property. We also find it difficult to defend intellectual property in software from a utilitarian perspective because of the current structure of the market. We mention two characteristics of the software market that make it distinct and promote monopolistic conditions and excessive profit taking: the facility of replication, and the need for compatibility in operating systems. We conclude that there are good reasons to reverse the current market’s structure. We suggest three possible remedies. The government could rigorously enforce antitrust legislation, impose greater monitoring and price controls, or obviate the commercial aspect altogether by denying the application of intellectual property rights to software.