A Question of Fairness

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 fairness?  There’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.