Tea Time With Jesse

Six of One, Half Dozen the Other

A Question of Fairness

Posted by middlerage on November 7, 2010

Here is a post I hope readers chime in with their opinions because I am unresolved on the issue and really hungry for a deep conversation. I found this NYT article, via msnbc.com, about Microsoft and its anti-software-piracy campaign. I was reading along, fascinated by the lengths they go to (perhaps need to go to) to protect their intellectual property (hereafter IP) when I came across some statements that suggested Microsoft should NOT be protecting their software. I was astounded.

I am no fan, nor do I shill, for Microsoft, but am okay with a creator protecting their rights as concerning said creation. (Microsoft a creator? sure there are caveats, but this is addressed below). It just seems fair to me. Remember that, because fairness is a theme of this post. So, as I was saying, I was reading along, enjoying the story of an anti-piracy war room, when I arrived at this blurb in the article (at a bit where Microsoft is chasing piracy operations in India):

“It is better for the Indian government to focus on educating its children rather than making sure royalties go back to Microsoft,” says Eben Moglen, a law professor at Columbia Law School and a leading advocate of free software.

Well. I’m all for helping little children, but to me, it is only fair that Microsoft get those royalties. This was the first time the article presented a counter argument to the idea of protecting IP. Of course journalists love to present the opposite side of things in the interest of balance, (which as a global warming researcher I am all too familiar with; and as a scientist I am keenly aware that balance is not always a good thing. There is no need to give the exact same column inches and number of quotable experts to the concept of intelligent design, because it is not a valid scientific theory.).

In several other places, balancing the anti-piracy ideal was proffered in the article, but never really developed as a counter argument. Never adequately defended. Hence my plea to readers to join the discussion, because I am astounded at the idea of not being fair as a good thing. This was such an unexpected idea that I want to keep an open mind. And I want my readers to provide the development of this concept that the article did not (to my mind).

Am I becoming a libertarian? As a liberal I should be happy to shoot down a giant corporation. I should be happy to give away free software to poor people. But, again, there is a matter of fairness. Microsoft has developed the Office Suite, packaged it, marketed it, delivered it, licensed it, and so on. Don’t they deserve, then, to reap the rewards? Some of the commenters on the MSNBC site claimed that Microsoft was getting their just desserts because they really just stole the ideas or bought the companies that developed the ideas. Remember, I had mentioned above about MS being creator and owning creations, so yeah, there is certainly an argument to be made over Microsoft’s own personal fairplay. However, if they bought companies, they now own the companies and associated IP, and as a matter of fairness they should reap the rewards. Issues of how they fairly or unfairly came by the IP should be addressed further up the pipeline.

I guess as a liberal I strongly feel that corporations should be regulated. This is because I feel their sole raison d’être is to make money. No matter what. Even if, and often if, and especially if, that means being unfair to consumers. I want regulation to enforce fairness, therefore it is hypocritical of me to not want to protect fairness on the other side of the coin. Fairness of ownership comes into play in lots of areas, from artists to movies to musicians. In the past I have followed with interest the concepts of ownership as a sculpture leaves the artist and becomes the property of a large entity. If IBM buys your artistic creation for the lobby of their headquarters should they get to change it? I say no and it would be hypocritical of me to then deny IBM protection for the IP as it leaves their hands.

So as I mentioned above, fairness is a theme of this post. I am having an almost visceral reaction to the undeveloped counter argument in the article that Microsoft not defend their IP. But what is fair and fairnessThere’s the rub (as Hamlet says). Take a moment, dear reader, to define fair. It’s like defining love, i’nit? In fact I once ran across an article about an economist who studies the concept of fairness (man! I wish I had/could remember that article now). We all know what fairness is (or love) but try to intellectualize it, try to define it and dang! And you can bet we have slightly different views of what is fair. I had never ever thought about fairness being a tricky concept until I ran across the article and the economist. It is just the coolest whoa! moment to realize that something you have taken for granted is actually a very hard concept to pin down. And huge chunks of our social fabric, yea even economic fabric, is wrapped up in notions of fairness.

Is it fair for Microsoft to charge money for Office? Should they give it away free? To me and my sense of fairness – of course! However, there are some parameters involved for me personally; it becomes easier for me to give Microsoft money, because I haven’t had to shell out for Office. And it is expensive! I originally purchased Office under a much reduced, college student price, and later I got it for free when my university got a blanket license that allowed one home copy per employee. Forget India, what if I am a poor person in Appalachia (America’s go-to place for po people examples)? How do I purchase the $150 MS Office suite with butter n’ egg money? Here is where I am appalled at my creeping libertarianism, but it just seems like the marketplace should drive Microsoft to lower their price. But to require them to not get money at all? Not fair! (I know I know – what is fair?)

The article veered off kilter again, with another iconoclastic spastic quote from the same law professor:

As Mr. Moglen sees it, these efforts underscore a certain level of desperation on the part of American companies and the economy of ideas on which they have come to rely. “This is the postindustrial United States,” he says. “We will make other governments around the world go around enforcing rights primarily held by Americans. This is a very important part of American thinking around how the country will make its living in the 21st century.”

I am flummoxed. Moglen has me off balance. Is there something wrong with an “economy of ideas”? I confess I don’t get it, but I don’t dismiss it out of hand, because maybe I am just not smart enough to get it. Is there something wrong with rights, and IP rights, and defending them? We aren’t making steel or textiles or furniture any longer. And we need to make something in order to trade it for, you know, food-shelter-life. It seems to me that the notion of an economy of ideas is as old as The Enlightenment which is the foundation of our country and the patent office set up at the very beginning of our country.

Other odd counter arguments from the NYT article were more on the business management side of things. Some experts thought that losing out on software sales to piracy was a beneficial cost of doing business because it keeps your product front and center, i.e. it is better for your global enterprise to lose sales to pirated copies than to rival software. And of course several open source advocates chimed in, but it was still neither-here-nor-there: nothing to do with fairness and compensation, and everything  to do with business and marketshare. If you have rival open source software, and like to see Microsoft’s’ hamfisted antipiracy backfire, what of it. I still did not get my debate fix from the article on why should should’nt Microsoft get compensated for their IP, no matter how evil they are.

So what say you, dear readers? If you have good arguments for the other side, or even if you agree with me, I am all ears…errrr…eyes.

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8 Responses to “A Question of Fairness”

  1. Jerry said

    This might end up being a long comment, but I’ll at least try not to ramble too far off-topic…

    Funny that a guy living in the US and speaking for India would liken Microsoft’s efforts as a sort of economic imperialism when India is working it’s ass off to be a partner in the “economy of ideas”. Colonize us! Please! If they want to continue to be the go-to country for outsourced software development, then they will need to participate in keeping that industry healthy. It’s not just fair, it’s pragmatic. I’m curious how that same professor would respond to a Bollywood studio’s efforts to stop its movies from being pirated.

    Microsoft and fairness is a really tricky thing, and it the subject of ongoing legal battles around the world. It’s also fascinating to study. Note before I continue that I write software, and I ask people to pay for it.

    In general, any company should be able to put resources into making something, set a price for it (any price they want), and sell as many units as they can. The more they sell the better chance they have to offset the cost of developing and manufacturing the whatever. In most businesses the cost of manufacturing is sort of a built-in protection against piracy; it would cost more to tool up a factory than to buy a car. The two notable exceptions I can think of off the top of my head are printing money and digital assets like CDs and software. In those cases production cost is a tiny fraction of intrinsic value.

    So, Microsoft has tried to find other means to add intrinsic value to the product when purchased legitimately. (Actually, they try to reduce the value of pirated copies.) Sometimes their actions hurt their paying customers as well, but not enough to drive them to alternative vendors. Personally, I don’t own Microsoft Office, I use an open-source alternative. Frankly, Office is better, but not better enough to justify the expense. I don’t use office productivity software often enough to be willing to spring it.

    If Microsoft lowered the price, I might buy it, but I’m not Microsoft’s target audience and if they want to price me out of the market that’s their right. That does NOT make it ok for me to steal their software. (I actually have an old paid-for copy of Excel lying around from a time I needed it for work.)

    So far, I don’t even see this as fairness, but a requirement of a capitalist economy. That Microsoft makes HUGE return on investment for their products is a credit to timing, luck, and… well, ruthlessness.

    Oh, yes, Microsoft was ruthless in the past. Once, when seeking investors for a new online service, back in the dot-com boom, potential investors all had the same question: “What will stop Microsoft from stealing it?” The answer: “nothing.”

    However, even the fact that Microsoft trampled all over other people’s IP to get where they are doesn’t mean it’s ok to steal their products. The people they stole from have a right to seek recompense (though in the US being right doesn’t mean you’ll win if you can’t afford the lawyers). So Microsoft may be a bunch of hypocrites, that doesn’t mean the laws protecting their property should be suspended in their case alone.

    And a quick aside here – if it were only Microsoft working to protect its IP, that would be one thing, but Microsoft has become the poster child when there are plenty of other companies in much less morally ambiguous positions who are also striving to protect IP worldwide.

    The other thing about Microsoft, though, is that it’s subject to a whole slew of laws based entirely on fairness that its competitors are not. Microsoft has a monopoly. They’ve used that power to prevent manufacturers from shipping systems with other operating systems, to create secret hooks in Windows so their products work better than competitors’, and to actively make it difficult for other systems to interoperate with theirs.

    They’ve lost suits in the US (where antimonopoly laws are written to protect other businesses) and in Europe (where the laws are written to protect consumers). In the US they were sued a second time because they ignored the first wrist-slap. In Europe, they’ve been told, “make office play nice with open standards so people who don’t choose office can still work with those who do.” I haven’t checked the progress on that lately, but last I heard, Microsoft was “working on it.”

    All that stuff boils down to fairness. It’s not fair for Microsoft to use its huge market share to prevent people from using other products. It’s not fair for Microsoft to use internal secrets so its software works better on windows than anyone else’s, so that any time someone else gets a good idea, Microsoft can make a similar product that runs better. It’s not fair to make a corporate security structure that only works with their browser.

    It is fair for them to set a price for their product, however, and it’s fair for them to expect people who use the product to pay for it. If a motorcycle is too expensive, you buy a scooter. If Microsoft Office is too expensive, you use OpenOffice, which is absolutely free and adequate for most purposes, if not as glossy as MSOffice. (The EU suit I referred to above is actually more about document formats than the software itself. they want Microsoft to either publish their formats as an open standard or adopt an existing open standard. One point they raise is that governments have tremendous assets tied up in a format that is owned by a private corporation.)

    Um… where was I going with all this? Right. In my opinion, Microsoft has every right to charge whatever they want for their software, as long as there is competition. As long as I can say, “X is too expensive, I’ll use the cheaper-but-maybe-not-as-good option Y instead,” then they can knock themselves out if they want. (Actually, in this case I mean that literally.) Their past history of squashing the cheaper-but-maybe-not-as-good alternatives means they they should be held to a high standard of fairness, but it they hold up their end, then capitalism demands that their rights be respected.

    I think I’ll put my thoughts on Open Source in another comment to compartmentalize the discussion…

    • Jerry said

      Naturally in a big long ramble like this one there are parts I wish I could edit. LIke, it would be nice if I could add a subject to the sentence Once, when seeking investors for a new online service, back in the dot-com boom, potential investors all had the same question: “What will stop Microsoft from stealing it?” The answer: “nothing.” and make it Once, when my company seeking investors for a new online service, back in the dot-com boom, potential investors all had the same question: “What will stop Microsoft from stealing it?” The answer: “nothing.”

    • middlerage said

      Zounds, thanks for the big response. I’ll chew on this for awhile, but quickly want to remark that in the midst of nanowrimo you tore away for a huge comment. Dang!

    • middlerage said

      I think what I hear you saying is that fairness depends on context. And in the context of Microsoft, different fairness applies because it is a monopoly.

      I was especially taken by these comments of yours:

      Funny that a guy living in the US and speaking for India would liken Microsoft’s efforts as a sort of economic imperialism when India is working it’s ass off to be a partner in the “economy of ideas”.

      I’m curious how that same professor would respond to a Bollywood studio’s efforts to stop its movies from being pirated.

      They’ve lost suits in the US (where antimonopoly laws are written to protect other businesses) and in Europe (where the laws are written to protect consumers).

      Microsoft has every right to charge whatever they want for their software, as long as there is competition. As long as I can say, “X is too expensive, I’ll use the cheaper-but-maybe-not-as-good option Y instead,” then they can knock themselves out if they want. (Actually, in this case I mean that literally.) Their past history of squashing the cheaper-but-maybe-not-as-good alternatives means they they should be held to a high standard of fairness, but it they hold up their end, then capitalism demands that their rights be respected.

  2. Jerry said

    Did you know that many software companies steal their End User License Agreements? They take the language one company has used to establish legal protection for their software, switch the names, and use it themselves, in a clear violation of copyright of the copyright-protection language. Oh, the irony.

    Below I’ve pasted the End User License Agreement for my software. I tried to make an ethical appeal to users rather than a legal threat. A couple of big-shot IP lawyers have congratulated me on the language, though they don’t think it will help me much in a legal action.

    This is the actual text you see when you first run the software:

    LEGAL JUNK

    By accepting this agreement you promise not to be a scumbag software pirate robbing hard-working programmers of their livelihood. Sure, I have fun doing this, but if I’m going to keep it up I have to put groceries on the table, you know? You are welcome to install Jer’s Novel Writer on any machines you own as an individual. Corporations, businesses, and what-not do not have that right. If you’re part of some giant novel factory you need to pay for a copy for each machine.

    Heck, let’s just be reasonable here. Jer’s Software Hut (the Hut) is depending on people like you who know the right thing to do. You know the difference between sharing and stealing (sharing good, stealing bad). If you need to ask a lawyer if it’s OK to do what you want to do, it probably isn’t. Why bother? The lawyer will cost you more than dealing directly with the Hut anyway.

    Just to make it clear, while you can buy a license to use this software till the cows come home, Jer’s Software Hut owns the code. (In geek-speak, you own your copy of the binaries, while I own the source.) It would be silly to do anyway, but you’re promising now that you won’t try to reverse-engineer Jer’s Novel Writer or incorporate any subset of it into some other product without express written permission from the Hut.

    I will give you the right, however, to make as many copies of this agreement as you want, and modify it and use or sell it to your heart’s content. If you publish it somewhere, I would appreciate credit. (I can see my EULA-writing career blossoming now.)

    Heck, you’re not reading this anyway. I don’t know why I bother. Other companies put all kinds of stuff in their EULA’s, and some of them are downright nasty. It’s never stopped you before, though, has it? You’ve already clicked “agree” like a good little robot. I’m glad I went with the cheap lawyer.

    NO WARRANTY!

    Oh, yeah, one more thing. Everyone’s doing it and I guess there must be a reason for that. THERE IS NO WARRANTY! Jer’s Novel Writer is sold as-is and once YOU make the decision to put it on your computer you accept responsibility for whatever happens. Anything I might say or might have said that sounded like a warranty is not one. Sure, you could take me out and get me all liquored up and I’ll probably say whatever you want to hear (and you’re welcome to try), but sorry, Chumley, that won’t count. Anyone claiming to represent Jer’s Software Hut who says there’s a warranty is a big, fat liar.

    I’d like to, but I just can’t promise that you’ll never lose work. No one can make a promise like that. Stuff happens. If through some bizarre set of circumstances your computer is damaged, you will have my sympathy but that’s all. This software was created for writing novels, not running space shuttles or guiding smart bombs or anything else where someone could get hurt. It says something about our society that I even have to point that out, but there you go.

    I know it’s going to happen. I’m going to get a call from someone who’s been working on a project for months or years, and lightning will strike while he’s saving and his file will be lost. He’ll contact me and I’ll ask him “When was the last time you backed up your work?” and he’ll say “Never” and I’ll say “Oh. Well, you’re screwed.”

    You are your own best warranty. Back up your work often. I’ll put some tips on how to do that at JersSoftwareHut.com.

    Enough of all this technical jargon and legal jibber-jabber! Click “Agree” and let’s get started!

    • middlerage said

      When and how did the IP lawyers run across it? And I really want to know what their beef with it is. I know they don’t have a beef, but they don’t think it would work – why? It would be interesting to run it by a judge, and get his/her opinion.

      • Jerry said

        One of my paying customers has a brother who’s a high-falutin IP lawyer in London, and another writer had his IP-Lawyer buddy look at it.

        The London guy said he would keep it as an example for his clients who wanted a friendlier, more constructive tone to their EULA’s. Since I get everything second-hand, I’m not sure why the second guy thought my EULA wouldn’t hold water in court, but he rightly also identified that I was trying to win the battle outside of the courtroom. Maybe it’s the part where I talk about getting liquored up.

        Since there’s debate over whether any EULA is enforceable, I’m not too worried. I expect mine gets read more than most, and the simple straightforwardness of it has to be a plus.

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