Why do we care about ethics?
Ethical principles are considered by some to be pure philosophy. The market, we are told, has no morality. Personally, I find this vision to be both pessimistic, and short-sighted. People do have a strong sense of justice; it is one of the social tools we have evolved to allow us to build large, functioning societies.
We find unethical systems distasteful because deep down, we realise they can't survive. For this reason we dislike corrupt politicians, policemen and judges who take bribes, businesses that defraud the consumer, advertising that lies, and so on.
The profit motive is not, actually, king. Rather, the customer is. So for a businessman, ethics is whatever keeps the customer happy, over a long time.
Ethics apply to a system in which a variety of actors are involved, with some conflict of interest between the actors. So, the state vs. the invidual; a vendor vs. a customer; a small firm vs. a large firm; a husband vs. a wife.
Now, a simple rule to measure whether such a system is ethical or not. Does the system favour the rich and the powerful? Does it try to favour the weak and the poor? Or does it treat all parties equally?
I'd argue that only a properly neutral system is ethical. Discrimination in either sense is unsustainable and unethical.
Of course you can say that since society favours the rich and the powerful, it's unethical. I'd agree to some extent - societies that do this are less ethical than those that don't. Democracy, the concept of "one person, one vote" is ethical because it treats the poor and weak the same way as the rich and the powerful. Lobbying, in which companies can influence government policy, is unethical because the poor and weak are firmly excluded.
So ethics can also be seen as a lack of barriers, equal access, transparency, and so on.
Ethics and "Intellectual property"
Using my simple rule, we can grade different systems of IP protection:
- Copyright law is ethical. It does not create any barriers to the poor or weak. A copyrighted work from a starving artist has as much strength as a copyrighted work from Universal Studios.
- Trademark law is fairly ethical. It has costs, but these are modest.
- Patent law is unethical. It has significant barriers to the poor and weak. Poor and weak firms cannot usefully own patents.
We also see very different distributions in the market. The largest software copyright holder is - collectively - the free software community. The largest software patent holders are the largest IT firms. The current patent system is not a ladder to prosperity for the poorer sections of industry, but rather a tool for maintaining and amplifying monopolies. A very different picture to copyright.
Building an ethical patent system
Can we build an ethical - and thus sustainable - patent system? Yes, if we fulfill these conditions:
- Patents must be very cheap, or free. A starving inventor must be able to aquire a patent without sacrificing his next meal.
- The strength of a patent cannot depend on one's wealth. That starving inventor must be able to easily defend his patent against competitors without selling his house.
The irony is that an ethical system works better for everyone. Thus an ethical patent system is more likely to be sustainable than the current unethical one. Sustainability of the patent system is a concern for the patent industry more than anyone.
It is delicate, but possible to construct an ethical patent system. There exist proposals that take us part of the way. It is in the interests both of wider society, and the patent industry, to try to do this.
It is even plausible that an ethical patent system could be very popular and useful in the software industry. However, given today's patent system, it's accurate to say that patenting software is unethical, unsustainable, and deservedly, very unpopular.