OddThinking

Post-script: In Point 2, I said I could not think of any “universal access” regulations for software or movies. I forgot “Fair Use” for criticism and parody.

That addition doesn’t undermine any other points.

I will have to take the time to respond to this correctly. I suspect my argument is substantially different from James’. Let’s split the ideas of copyright from that of whistle-blowing.

For whistle-blowing, I’d like to comment on 27 and 28. The rough idea is that you report it to your bishop, and then he, in the name of the organisation, reports it to the police. In this case your responsibility is discharged, justice is done, and the organisation can effectively distance themselves from the priest (firing them and so on).

It is (and I wonder if this is widely debated or generally accepted) generally believed that going to the police in this matter is considered unethical. The idea being that you are bringing the company into disrepute, and damaging its goodwill when the wider company actually bans the practise and some employees take part in it nonetheless. It allows the company to take corrective action on its own. When this does not happen, then you’re supposed to blow the whistle.

Given this, I would put on dubious ethical ground the practise of rewarding a whistleblower. Specifically, taking the reward puts the whistleblower in murky ethical territory, so offering it effectively inviting or condoning ethical behaviour — a sort of moral hazard.

On Intellectual Property, given your above statements, how can you justify leaving out software patents?

I do not think it is unethical to report a crime to the police rather than an employer. I do not believe it is “generally accepted” that this is the case. Even if it was generally accepted, I do not believe that makes it any better ethically (err.. morally? I know I get those two terms confused.)

Where the crime is not being committed on behalf of the organisation, the repute of the employing organisation is not a factor in the handling of the crime. Judges never say “Well, you are guilty, but you work for a nice company that doesn’t deserve this, so let’s pretend you are innocent.”

If the problem is being performed as part of the organisation – i.e. you realise your organisation has been over-charging your customers or over-extending your license agreement, then it makes sense to use internal procedures to rectify the problem, and reimburse the victims. Companies that step forward and pro-actively fix any grievances are to be commended. That is quite different to letting the company cover-up the problem. I tried to cover that in point 26.

I want to clarify your concern with rewards. Your arguments apply to all rewards for carrying out your moral duty, including accepting/offering rewards for information leading to the arrest of bank robbers. Is that what you intend? (This is not a refutation of your point. I just seek clarification before I address it.)

I left out software patents (and trademarks) because it wasn’t relevant to the original claims about BSA.

I feel my thoughts on software patents are not yet clear, and probably deserves more thinking and reading. I believe my concerns with the software patent system are not so much with the general concept of rewarding publication of innovation with (limited) ownership over its use. I believe my concerns are more related to the current broken implementation of this concept, which serves to hinder innovation rather than encourage it.

I’m surprised there’s this much contention on the whistleblowing issue.

Where the crime is not being committed on behalf of the organisation, the repute of the employing organisation is not a factor in the handling of the crime

The example you give talks about the guilty party being viewed positively due to the company. However, I’m talking about the company being viewed negatively based on the guilty party and the fact that they apparently did nothing. In actual fact the company did not have an opportunity to take action, because the whistleblower went straight to the police. This can do real damage to the good-will of the company.

Companies that step forward and pro-actively fix any grievances are to be commended. That is quite different to letting the company cover-up the problem. I tried to cover that in point 26.

We agree on this, except I wouldn’t exactly “commend” companies for being following minimum ethical standards — “Congratulations, you went a whole day without killing anyone”.

I want to clarify your concern with rewards. Your arguments apply to all rewards for carrying out your moral duty, including accepting/offering rewards for information leading to the arrest of bank robbers. Is that what you intend?

Actually, my argument does not apply to all instances of carrying out moral / ethical duties. If you’re given a reward for turning over a serial killer, that’s not a problem. If you’re given a reward for turning over someone who looks like they might be a serial killer, this could cause problems. On the one hand, if I didn’t like my neighbour, I could report them as a terrorist serial killer, purely for selfish reasons. Alternately, even if I genuinely thought they were serial killers, there’s clearly a conflict of interest. This is where “have you seen this man” is clearly delineated.

Should probably take an aside to say people use the term “perceived conflict of interest”, when really there’s only a “conflict of interest”. It doesn’t matter if you intend to do the wrong thing or not, the conflict of interest still exists.

When I do, I’d like to extend your idea of broken-ness to the entirety of Intellectual Property.

I’m also surprised by the contention…. but because the view isn’t clearly the other way!

I concede my example was about the guilty part being viewed positively due to the company. My point was than in a system of justice, the reputation of a perpetrator’s employer is not relevant.

I also continue to make a distinction between individual acts by people who happen to be employees, and acts carried out on behalf of the organisation.

In the case of child-raping priests, the employing organisations do not deserve an opportunity to take action. The organisation should not be involved.

There has been a recent case where a lawyer, in his own time, appeared on a YouTube video apparently smoking marijuana (a claim he denies – he says it was lawn clippings) and burning religious books. His employer, a university, is considering suspending/firing him because people have complained to them. I believe the allegations over the marijuana are a matter for the police (who have already dismissed them). The burning of personal property is not against the law. The university should not be involved.

On the other hand, if you can see your organisation is about to break some contract, of course you should try to get the organisation to respond. There are limits to that too. When you come across the paperwork paying for hired thugs to break the legs of your rival CEO, it isn’t enough to have the invoice cancelled. Whistleblowing is required.

I wouldn’t exactly “commend” companies for being following minimum ethical standards

Good point. I wish that this minimum ethical standard was followed often enough for me to completely agree with you, though.

When Google (prompted by pointed questions from privacy researchers) realised they had been collecting more WiFi data than they had declared, they were apologetic and worked with authorities to remedy the situation promptly. This was a rare enough occurrence to stick with me, and raise my opinion of them. When I see Facebook go through similar probing, I don’t see a proactive approach, but a “Damn, we almost got away with it too” attitude.

Next, you make a distinction between rewards for information about serial killers and “maybe serial killers”. I did make a distinction in point 30 about the claims being proven true. This was triggered by the unethical treatment of innocent people arrested during the Iraqi and Afghani wars based on information bought from civilians. Where the monetary amounts were large, there was a clear conflict of interest for the informants.

Umm… your point about “Have you seen this man?” is that, because it is about finding a person who is already a suspect not proposing a suspect, there is little chance of a conflict of interest in providing incorrect information for the reward. Is that right?

Your observation about the misuse of “perceived conflict of interest” amuses me. I will keep an eye out for that in the future, thanks. I still see the term “perceived conflict of interest” as having a use in some situations: “Some people have argued that I should not be the head of the drug squad because I have a conflict of interest: I mentioned my husband is a coke dealer. But you see, this is only a perceived conflict of interest, due to a misunderstanding. My husband is actually a dealer of Coca-Cola products.”

OK I think we practically agree on every point.

On the point of child rape (or indeed the lawyer), I make the distinction when the illegal act is done as an employee as opposed to as an individual. In a recent case, Catherine Deveny made some comments on Twitter which got her fired. The reasoning was, she did it using the “official” twitter account for her newspaper, which meant she (to some extent) spoke for the company. I was using “employee” specifically in that context. Clearly you see the lawyer as still an employee if he’s smoking weed in his own time.

Certainly, there are cases when escalating doesn’t solve the problem, you are required to blow the whistle. As you mention, in cases of clear fraud or malicious intent on the company’s behalf, escalating may be useless, or allow for companies to cover up their fraud. I will concede there may be value in distinguishing between the “and we nearly got away with it too” vs “we’re really trying to improve the situation here” cases. It’s too hard to draw the line here, though.

I realised later I wasn’t being clear, but you inferred correctly: There’s little chance of a conflict of interest in the case of looking for a particular individual.

Considering how often “perceived conflict of interest” is used incorrectly, I wonder if you’d be doing yourself any favours by using the same terminology. However, still funny.

Time waits for no blogger. Alright, lets have at it.

There are two items at discussion here as Sunny pointed out. Whistleblowing vs copyright. Whilst my thoughts (as incoherent as they are) are intertwined on the issue, I’ll try and separate them.

Lets discuss the first one a little bit, but I believe Sunny has already covered it in great detail and I’m mostly happy with his explanation.

offering rewards for disgruntled employees to dob in their employers for copyright infringement is unethical.

As you correctly pointed out, there is inherent risks in whistleblowing. But there are two types of people. Those who are genuinely worried about financial safety by whistleblowing and those who are incentivised to make a quick buck. That whistleblower could destroy one person’s livelihood in order to increase his own. This is the scenario I don’t want to encourage. As Sunny pointed out, the correct thing is for the whistleblower to discuss upwards and negotiate an appropriate time to purchase software. Unfortunately whether the BSA intends it or not, greed tends to cultivate the worst instincts of people.

As a side note, but not part of my argument, I found this article that I read a while back instructive, though quite possibly tainted: http://www.techdirt.com/articles/20071126/024312.shtml

The second point is more about creative expression. Lets say I write PhotoJamesShop by myself. I have 10 legitimate design firms who bought it and 50 students pirated it. 10 of those students used my pirated software to produce amazing works of art that went on to change the world, become viral hits, inspire people. I didn’t make a dime and yes legally I’m entitled to have my money from those kids so that I can eat and code PhotoJamesShop 2.0. I may not make 2.0 anymore because of the piracy means I’ve gone broke and my family/stockholders starves.

However due to the one to many nature of software means there is a net gain to society even in spite of the loss of my business.

Now if I had made a ‘students-free’ edition which puts a subtle ‘Made in PhotoJamesShop’ watermark on everything until you pay for it and people STILL pirated it, I’d be pissed, but that’s a different issue.

Sunny,

Clearly you see the lawyer as still an employee if he’s smoking weed in his own time.

Couple of clarifications: The lawyer claims he wasn’t really smoking weed, just pretending, so we need to add “alleged”. It was in his own time, and therefore, not related to his employer. Except, I have to add a proviso that if he was convicted, I think (IANAL) he would be de-barred, which presumably means he couldn’t do his job, at which point it is definitely a relevant issue.

We are getting pretty close (modulo any future response about the IP issues).

We both seem to agree acting on behalf of an employer puts greater onus on your behaviour to be consistent with employers wishes and prioritise their needs high (with the law still ranking higher.)

We both seem to agree that getting a business to remedy their poor practices from within is better than having that imposed on them. We both seem to agree there is a limit to how far this should be allowed – and neither of us seems to know how to draw that line.

I can see that a large reward for whistle-blowing offers a conflict of interest in some situations. (We both agree there are some situations – “have you seen this man?” – where we don’t see a conflict of interest.)

In my original point #30, I tried to identify one possible upper limit to ensure that the conflict was not big enough so as to encourage dishonest behaviour. Is that sufficient?

James,

So we have a similar issue that the size of the reward should not be so great as to incent dishonest behaviour.

(I wonder if a worker who received such a payout who had been trained in processes of reporting such an issue internally could be found to be negligent.)

The TechDirt article seemed to slam the BSA on irrelevant details for this discussion. (I am not here to defend all the of the BSA’s actions; I am here to question whether it is really unethical to offer rewards for disgruntled employees.) The only piece of information that I could see added to this discussion was that the payouts were generally (always?) less than $5,000, which I would submit is peanuts (in most cases) compared to the risk of lost wages due to being fired and/or unemployable.

Your PhotoJamesShop example contains the seeds of its own demise. By your own admission, there is no further copies of PhotoJamesShop being released. The next 10 design firms and the next 50 students will not be able to use PhotoJamesShop, and will join you on the dole queue. How is this a winning strategy?

Furthermore, there is nothing here inherent in the “one to many nature of software”, whatever that means, that can’t also apply to physical property. I’ve decided to become an artist. By using the same set of ethics, I should be allowed to take 50% of your assets to support me while I try to change the world, just as the students did in your PhotoJamesShop example. Don’t worry. I’ll be a great artist. I expect there to be a net gain to society, despite the loss of half of your fortune… In any case, you don’t get a say in the decision.

Yep. We’re in agreement on whistleblowing. I’m guessing there will be differences on the IP side. I’m working on that. Other than not having enough time, the concept itself requires a fair bit of “unlearning”, and I have to make sure I write it in enough detail to set the context.

The gist of it is the same as what James is saying, except I add that PhotoJamesShop really exists in your mind, real-estate that is (arguably) more valuable than the product itself. In a right society, you should be able charge James for simply knowing about the product, and that might be more expensive than the product itself.

Still working on it, incidentally. Just haven’t found the time.

Like it or not, ensuring your company adheres to the rules and regulations of the industry are a part of every software engineer’s job. Apparently* you can be held accountable to codes of ethics such as those used by the ACM (specifically General Moral Imperative 1.5) and the IEEE Computer Society (Principal 2, 2.06), even if you’re not a member of either, simply because these are widely known and are viewed things the typical practitioner should know. Project Managers too are expected to know things like the PMI Code of Ethics. So if you haven’t read these yet, get cracking!

I just wish the BSA could enforce copyright law in a way that made them more like tax accountants than the police. If they could be asked to come in to a company and help it sort its compliance out (maybe once a year), this would trigger a far better outcome than the BSA asking us to help them prosecute the company. I would bet that there are many companies out there that don’t have an internal procedure for reporting these sorts of issues (e.g. they’re too small for that), or that they may be ignored simply because they’re not corruption, unfair dismissal or assault related complaints (all of which the company is vastly more likely to have legal staff to handle).

In the case of the too-small company, any internal reporting you do is likely to put the person you’re reporting it to into a conflict of interest (or at least perhaps make them realise they have one). It may be their company, and their money they’d have to spend on licensing. Or it may be part of their job to ensure that every employee they manage has the (appropriately acquired) tools to do their job. In this situation, going to the BSA may be the only way to get this person to listen. For the too-busy-with-real-litigation company, internal escalation to the legal department is certainly the first step. There will need to be others.

Other companies may yet have fully functional licensing compliance and remediation processes. Whatever the company size or its dysfunctions, figuring out if internal escalation is enough to get the situation resolved is the hard part of compliance. Either way, escalating the issue may well put your job and entire career in jeopardy. If you adhere to the codes of ethics I linked above, that cannot be an impediment to you doing the right thing. Even if you don’t, failing to escalate will put your job at just as much risk.

* I’d cite an article here if I could find it again. All I can remember is it was a column in IEEE Computer or Communications of the ACM this year talking about the legal ramifications of a contract dispute between two companies (was one of them Airbus?) over the late delivery of some defective software. In it, they described how although the developers in question claimed didn’t know of any code of conduct for them to follow, so they couldn’t be held accountable to one, the court disagreed, saying that several were easily found with very little searching, and that project managers and developers could be held up to that code.

Richard,

If they could be asked to come in to a company and help it sort its compliance out

I see BSA as the stick that software companies use to threaten companies to be compliant. There are other people who can help with the accounting side, and BSA offer a tool to help you understand how good your compliance systems are.

As for the codes of ethics: In a different role, I was vetting purchase justification forms, especially for software. One of the fields was an opportunity to warn management of the (surely) dire consequences of not urgently buying the developers whatever it is they suddenly realised needed that week, and hadn’t been able to predict when budgeting the month before.

It was a great opportunity to write “Our project would be delayed by n days, with a loss of $y profit, which is 500x the cost of the software.” However, I was frequently disappointed by the individuals who thought the answer to the question “What would be the impact if the item was not purchased?” was “We would have to use it illegally.”

So much for a professional attitude amongst software engineers…

Richard: I don’t know if paying for something comprises a “conflict of interest” simply because it would deprive you of the money you’re paying with. It’s certainly the most mind-bending inclusion of “conflict of interest” I’ve heard. Despite Julian’s “we would have to use software illegally” comment, I still believe that business owners do not regularly break the law for no apparent reason, especially since there are heavy penalties for doing so, and the business could suffer as a result.

In any case, I don’t think we can assume that the owner of a small business would obviously break the law simply because software costs money. However, the point you make: that simply escalating does not discharge your ethical duty, is one I agree with. The matter needs to be correctly dealt with. I would assume that this would mostly happen, but then I haven’t been in the working world long enough to know just how corrupt businesses are…

I don’t understand how escalating the fact that there’s illegal software being used in your company is going to put your job or career in danger. Whistleblowing might well do that, but that’s specifically not working within company structures to achieve your goals.

This is all ancillary to the idea that the BSA shouldn’t offer money to blow the whistle on your company.

Apologies for wading in late, and with a lateral link. I found this via http://blog.felter.org/:

I believe that, unintuitively, if you take a strong principled position in favor of information freedom and distinguish between principles and tactics, a more nuanced “middle ground” response to piracy is possible. In light of a principled belief that users should be able to share information, we can conclude there is nothing ethically wrong with piracy. Licenses have the power of the law but they are protected by unjust “intellectual property” laws. That said, principles are not the only reason activists choose to do things. Many political stunts are bad ideas not because they are wrong, but because they won’t work and have negative side effects. Tactics matter too. Even though there might not be anything ethically wrong with piracy from the perspective of free software or free culture, it might still be a bad idea. There are at least three such tactical reasons that might motivate free software and culture to not support piracy or participate in pro-piracy movements and politics.
[…interesting points follow…]

From here

Chris,

I am subscribed to the Copyrighteous blog, and I read that article when it was published.

I found it interesting, and I followed several of the links to learn more. But ultimately, I found it completely unconvincing – it skimmed over many important issues.

(Do not take this as an attack on the FLOSS movement, which I support. Hey, I am not even trying to attack pirates here. I am trying to attack pirates who claim the a higher moral ground for their practices. I also note that the conclusion of the author (Benjamin Hill) is that piracy is a poor tactic; I don’t want to misrepresent him.)

First, the article started with a summary of Richard Stallman’s position: If a friend asks you for a copy of some software that you have no right to share, then you are being forced into either breaking the law or being a bad friend. It is unfair (of the copyright holder) to make ask someone to make such a choice.

Perhaps it is an unfair summary, but it makes Stallman’s position look foolish. He chooses a ridiculous way to apportion blame. If a friend asks you to give them one of your employer’s expensive products for free, is it unreasonable for your employer to expect you should reject their request? If a friend asks you to smash a window and rob a shop, is it unfair to have to consider whether to comply? At what point do we start to suggest that maybe the “bad friend” label is being applied to the wrong person here?

Further into the article, and as part of your quote, he claims to take a “strong principled position in favour of information freedom”. If this position means what I think it means, I simply reject it, just as I reject “Property is theft.” I could construct an argument to support my position, but I don’t feel I need to. The onus of proof is on the other side, and I have failed to find any substantive arguments from them. Certainly, the link he provides as if to explain that position does nothing of the sort.

(Part of me wants to acknowledge that this is a precarious position – one logical argument would force me to shift my views – but I see this as a good thing. As a hint to anyone constructing such an argument, I would like to hear how this alleged inherent freedom of information applies to proprietary information, such as business plans. Should my vendor have the right to know how much I am willing to pay for goods or service? Even if the vendor is my friend or a friend of one of my employees?)

Now, once I have rejected that the principle, the follow-on point that piracy is not ethically wrong disappears. But, for the sake of argument, suppose you concluded that piracy was ethical. Perhaps you even adopt a softer position: that some of the copyright laws and/or DRM implementation are unjust. (I don’t argue against this – it may well be true. I have been arguing from general principles here. In particular, I acknowledge the Fair Use provision seems to be frequently ignored by DRM systems.)

In such a situation, then deliberately breaking such laws (or DRM implementations) as an act of civil disobedience may well be a principled step. However, one of the key (perhaps controversial) principles of civil disobedience is that you do so publicly (or at least publicly declare you are doing so.)

To secretly break the law, without helping to overturn the laws you feel are unjust, is exactly the sort of rationalisation about one’s self-gratification that I am objecting to.

To be clear, Hill did not touch on this issue – and that is one of the reasons I found his position unconvincing.