Contact:
Vige Barrie
Southern Methodist University
Communications Director
214-768-3678
[email protected]
Written By:
Richard O. Mason
September 12, 1997
A drama is playing out in a courtroom in McKinney, Texas, just north of Dallas, that has wide spread implications for technological industries and for all executives in this information age. The question is who owns intellectual property, or, more precisely, who owns an idea that might eventually be expressed as intellectual property. The case also involves the equally vexing issue of an employeeÃs moral responsibility to his employer.
Evan Brown, a computer scientist, joined DSC Communications Corporation in April 1987 after a successful career as an independent consultant. About that time he signed a standard employeeÃs agreement that gives DSC ownership of all of his ideas. Now, Brown says that he has an idea that can be used to develop software for converting millions of lines of workable but outdated computer code into a modern higher-level computer language. If successful, this application would improve significantly the efficiency and effectiveness of many tottering, so called "legacy," systems that still inhabit most telecommunications and computer centers in the world, making BrownÃs idea potentially worth tenÃs if not hundredÃs of millions of dollars. DSC wants that idea and claims that it has a moral and legal right to it. Brown does not want to divulge his idea to them, at least unless they are willing to pay him more than the approximately $2 million they have already offered him for it. He claims that he has no moral or legal obligation to do so.
The legal issues will be settled in the courts. The proceedings will be watched closely by the legal profession as well as by executives in high tech companies. The results of a recent survey by The Affiliates, for example, reports that 49 percent of attorneys they polled said that they view the field of intellectual property ñ which includes copyrights, patents, trademarks, trade secrets ñ as the fastest growing area of law. (Employment law ranked second with 31 percent. All others accounted for the remaining 20%). The ethical dimensions of the issues, however, will be played out in office conversations and in publications such as this.
The case raises at least 4 difficult questions of ethics:
1.Who owns intellectual property and how is a claim justified?
2.When does an idea become property?
3.Where is the line drawn between ideas incubated during work hours and those thought
during private time?
4.What steps can a rightful owner of intellectual property take to appropriate it?
With respect to the first question, intellectual property may be described as any data, information, knowledge or their expression that is created by a human mind. It usually takes the form of a string of symbols and is inherently abstract and intangible. Ownership of this kind of property is the right that people have regarding the uses of these symbols over time, including the right to exclude others from using them .Thus, property is a social concept. Late in the 17th century John Locke formulated a principle by which people could lay claim to a piece of property such as their knowledge. It boils down to this: those who work and make an effort have a right to the fruits of their labor. Evan BrownÃs work ñ in this case the mulling and machinating of his mind ñ appears to be the primary basis of his moral claim.
Unfortunately, the problem is more complicated than this. Ideas are like the effluent flowing from the mouth of a river. They have many contributories. To be fair we should, in principle, trace our way back up stream to find the other sources of "labor" that resulted in the idea and apportion credit accordingly. In this particular case Lance Flores, another self proclaimed "computer geek" Brown met at software users group meeting, maintains that he contributed at least part of the idea. He suggested to Brown that a particular artificial intelligence approach might be the best way to think about the problem. Moreover, it is very likely that discussions that Evan Brown had on the job with others at DSC and the special access he had to DSCÃs proprietary technology and its files, databases, and business plans contributed to the germination of the idea. So, from a stand point of moral justice, Brown is not justified in claiming 100% of the fruits. It is not entirely his idea.
And, this raises the second question about the status of an idea. By tradition, the tangible expression or application of an idea is considered property, not its cerebral representation. The situation is analogous to the question of when life begins in issues of abortion ñ when a twinkle flits in the partnersà eyes or at the completion of the first trimester. Thus, Brown is free to think anything he wants and, within the restraints of social convention, to take any actions he wants based on those thoughts. But, if he wishes to appropriate these ideas for himself and exclude others from making use of them, then he must express them in an objective enough form to allow others in his social setting ñ that is, those whom he wishes to exclude and those whom he hopes will support his claim ñ to validate or at least respond to his claim.
This he refuses to do, presumably because his idea once expressed will be so self-evident that others will be able to appropriate it quickly. Essentially, he does not trust the people whom he must convince. Nevertheless, he has a conditional duty to express his idea if he wishes to establish its uniqueness and its utility and claim it as his own.
DSC, of course, argues that BrownÃs claim is unfounded because the whole idea is theirs to begin. Brown was under contract as an employee and had signed the agreement requiring that he communicate all related ideas to DSC. Furthermore, he agreed to grant the company his rights to any "inventions" pertaining to telecommunications computer business. Lurking in DSCÃs claim is a third important ethical issue. Did, like Tennessee Ernie Ford in the song, Brown sell "his soul to the company store?" Is his life, and especially his mind, so readily compartmentalizable that his DSC synapses fire only during company hours and his private ones only during the rest of his life? On the face of it this is absurd. The river of ideas flows all of the time. Ideas emerge potentially at any time and any place, when one is showering or when one bolts out of bed in the middle of the night stimulated by a new thought. Ultimately this is a problem of informed consent. Did Brown really understand that he was signing away all of his thoughts about computers and telecommunications no matter when or where he conceived them? In an industrial age a company could reasonably lay claim to the fruits of an employeeÃs physical labor during their time of employment. In an information age this approach does not work.
And this leads to the fourth issue. Suppose DSC really is justified in their claim to the idea and the court awards it to the company. What then? Brown refused to describe it. Can DSC force it out of him? This appears to be as drastic a step as BrownÃs. While it is quite likely that DSC has a legitimate claim to at least part of the idea, it is highly debatable that the company has a right to threaten, coerce, or, in the extreme, to electronically tap his brain waves in order to get the idea out. In the final analysis, BrownÃs claim to human dignity must trump DSCÃs claim to their part of the idea.
These all are daunting ethical as well as legal issues. As the lawyers present their cases, some of the legal issues will be resolved, and we will gain valuable insights into several crucial moral issues of our information age.
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