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In the present digitized world, an intellectual property (IP) of an entity is often its biggest asset
[HYPERLINK \l “Rob06” 1]. Many financial and time resources can be saved, and litigation and frustration avoided if the entity’s policy outlines the terms of usage and ownership of intellectual property. Having presented the idea to a new company, there are the issues of legal and ethical concerns regarding its actions. While context plays a pivotal role in reasoning, IP plays a significant deterministic role in ethical arguments. One important step in analyzing a case is to establish the facts that are relevant to the case. In real life, it is possible to gather purportedly irrelevant facts as underlying factors. For this reason, some caution must be taken to prevent making irrational arguments and decisions regarding a professionalism of the related case. In other words, it is important to integrate both legal and ethical principles in the analysis of cases to prevent the conflicts attributed to supposedly illegal or unethical behavior. It is in that line that this paper provides a discussion on the topic who can change a proprietary source code with an emphasis on legal and ethical aspects of handling intellectual property.

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Story Overview

The case in point is a scenario where Derek Evans, a software designer who has recently left his job in a small firm and started to work in a larger company. To ease his customer service job in the new company, he adopts and implements a part of the source code used in the former company to develop a system for the new one. The previous employer is a software development company that designs special programs for management tasks. During his employment at this small firm, Derek was the main contributor in the design of innovative systems for customers. Upon modifying and adopting the source code at his new workplace, Derek’s software gets an attention from the new company’s management. When offered an opportunity to implement his modified system to other departments in the company, he is faced with an ethical dilemma. Having considered his friend’s advice, that is, to inform his former employer about the developments in the company he is working now, Dereck suggests informing his previous employer about this situation. To that end, the extended use of the source code could be negotiated. The suggestion is resisted, and the company claims that this new designed program is the property of a large company. Ultimately, Derek considers going ahead without notifying his previous employer, because whether he accepts the terms of his new employer or not, the source code will be adapted across the company.

People’s Views to the Topic

According to the first commentator, Derek should engage the lawyers of the present company, because the issue is both ethical and legal in nature. Therefore, Derek owes both companies legal and ethical duty. Pritchard notes that the issue is more of a legal case concerning the notion of ownership. In agreement with Pritchard, Ellin also agrees that the issue is more a legal case regarding the owner of the system. However, Pritchard argues that the absence of a software agreement at his former company does not make Derek an owner of the source code. For this reason, Pritchard suggests that Derek should have informed his former employer to avoid the ethical dilemma and potential legal problems that he might face in the future. Ellin is of the idea that the case can be addressed legally, and Horace should inform his company about the case. Dilworth also contends that the issue is of legal nature and covered by the copyright law. Therefore, the provisions of copyright law must be referenced as the baseline of the case. Morally, Dilworth argues that both Derek and Horace have an obligation to inform the small firm.

Legal and Moral Opinion to the Topic

Legal Perspective

The four areas covered by intellectual property include copyrights, patents, trade secrets, and trademarks. In this case, the small firm has enforceable interests in trade secrets and copyrights. Copyright law, however, is central to this case, because it protects all literal pieces including, but not limited to periodical, books, and source codes. The modification and use of the original customer care management software source code is entitled to copyright protection. Before highlighting the possible repercussions of adopting the source code without informing the small firm, it is important to outline the source code copyright. By default, writing a source code involves some creative expression; hence, implicating copyright. Additionally, by its very nature, writing a source code and eventually developing some software product entails the execution of various project tasks, including design and testing. Legally, this combination results in tension. First, copyright law protects the original work of authorship embedded in any tangible medium of expression such as software documentation. As pointed in Dilworth’s commentary, copyright in source code is protected as being similar to other creative or literary work [HYPERLINK \l “OEC92” 3]. On the other hand, copyright law explicitly fails to protect any principle, concept, method of operation, procedure, idea or discovery4]. Despite not creating an ownership, the registration of copyright mechanism implicitly acknowledges the existence of some form of ownership. Derek’s former employer could produce the documentation of the original source code as an evidence of its authorship or copyright. While the resultant software at the new company is not subject to copyright, both Derek and the company that wrote the original code have an enforceable copyright interest, specifically in the code that was copied and modified to perform the customer care task in new company [ HYPERLINK \l “OEC92” 3 ]. The source code could only fail to amount to an infringement if specific lines of codes, even though previously copyrighted by small company were the only and essential means of accomplishing the functionality implemented by Derek4]. To ensure that these issues are fully addressed, court will engage in some sort of filtration process, starting with the entire software and then identifying any similarities in the components of the source coded subject to merger.

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One of the pillars of a democratic and healthy software engineering industry pertains to rules of engagement, which must be well understood by the professionals and users whose interests are affected by these rules of engagement. Central to this case is the issue of copyright. These are two important aspects of copyright law that all software engineering professionals ought to be aware of, but often are not. The first point is that programming code is considered to be a literal work in various jurisdictions [HYPERLINK \l “Yat10” 5], 6]. Secondly, factual data is not considered to be a part of the Copyright laws [HYPERLINK \l “Deb13” 4]. In this light, the gap between owing a software code and owning an IP was apparent as soon as the Derek realized that his new company wants to adopt it across the other departments. The large company will face litigation if it fails to contact its original developer. Despite not being clear, Dereck must have signed some sort of non-disclosure agreement (NDA) or copyright protection contract. This would serve as the baseline of the litigation, because Derek is not allowed to use proprietary code segments of the small firm without its permission. As stressed in Pritchard’s commentary, being the main contributor in the development of the original software does not give him the ownership rights3]. The fact that the original code was developed while working at the small firm implies that for its development he used the resources, including human capital, finances and computer resources of the small firm . Expectedly, most employment contracts cover the elements of privacy and disclosure of trade secrets [HYPERLINK \l “Yat10” 5]. The potential legal burden lies with the big company, because it was made aware that the source code used by Dereck was copyright protected. Categorically, Derek pointed that he has used a part of the original source code to improve the efficiency of the existing system, and it was his wish that the owners of the code have been informed with the intention of getting permission or license to use it. The legal burden is also amplified by the fact that the source code was not an open one.

Moral Perspective

By considering software engineering as one of the most pivotal professions in the present digitized world, ethics can be viewed as a code of professional standards, constituting aspects of fairness as well as the duty to the public and the profession, [HYPERLINK \l “Baa08” 8]. Since proprietary source code can either be a benefit or a threat to its potential users, the element of ethics in design, development and adoption of the source code arises. In this subsection, the issue of ethics is discussed from the viewpoint of intellectual property rights considerations in software engineering practice. Besides, there is an apparent symbiosis between an intellectual property and ethics. For example, the causes of reputational damage and even potential litigation regarding the infringement of IP rights are attributed to violations of various aspects of the software engineering code of ethics9]. One of the most effective ways to enforce ethical standards in a software development company or software development project is to explicitly document ethical expectations from all stakeholders via a code of ethics [HYPERLINK \l “Mar081” 7].

As a member of the software engineering profession, Derek is obliged to follow the profession’s moral ideal in morally permissible manner beyond what the market, morality and law would otherwise require10]. In this context, the term morally permissible refers to anything that is either morally neutral or explicitly moral. On the other hand, a moral ideal is something that, even though one is not morally required, any other rational being in his or her rational best would wish everyone else to approach. This definition would explain the push by Derek’s former colleagues in advising him to inform his former employee regarding the alterations made on their software. Normally, any individual that violates a moral ideal is often discouraged, disapproved of and criticized for such behavior. The main point is that it is impossible to consider an individual as a professional without including the idea of code of ethics. In addition, tone cannot teach and enforce professionalism within the realm of software engineering without at least implicitly teaching code of ethics [HYPERLINK \l “Fra14” 2], 11]. Some of the ethical behaviors illustrating professionalism include handling security, handling IP and reuse, and handing information privacy. This assertion would be incomplete without noting that it is impossible to understand the software engineering profession if not to recognize that it is bound by code of ethics. In essence, lack of code of ethics translates to zero professionalism.

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Ethical arguments are different from the arguments like the one about two angles of triangle not being equal. Principally, ethical arguments are similar to legal arguments, as evidence is needed, disputes arise and exceptions to rules are expected. Despite having some similarities, and as it will be outlined in the following section, ethical and legal arguments are not the same. While legal arguments anchor on a set of statutes (Constitution) and previous decisions made by juries and judges, ethical arguments relate to the interactions among various codes of ethics and moral theories. For instance, consistent with the Contractarianism theory [ HYPERLINK \l “Wil12” 10 ], software developers are rational beings who largely promote their self-interests, and the most effective way to achieve that is to promote the interests of the society or people around them. Dereck is in a state of nature that pressurizes him, though acting alone or in a software development project team, to provide for his worldly need of shelter, clothing, and food. It is the scarcity of the resources that has compelled him to upgrade his game by being a competitive developer.

Furthermore, in ethical arguments, an individual’s position on the issues, as in the case of the commentator’s ethical arguments, is initially based on intuition. Typically, an individual’s intuition of what is right or wrong presents a strong common sense (heuristic) guide. This would be also explained after recalling his conversation with Horace Jones, when Derek begun to wonder if his actions were right or wrong. Consequentially, he suggested contacting his former company concerning the negotiation of the extended application of the proprietary software. In fact, as per the virtue ethics, a virtuous individual would have a good intuition as an aspect of professionalism. Irrespective of the repercussions, both Horace Jones and Dereck are morally obliged to inform the small firm about the developments at Derek’s new workplace. This argument is supported by the tenant of ethics of justice and ethics of fairness. It is unjust for the big company to exploit the IP of the small firm, which costs time and money. As pointed in King’s commentary, this source code is lifeblood of the small company; thus, at least it demands the compensation of some sort3]. As an employee of the small firm, Horace Jones is bound by not only the firm’s code of the ethics, but also by the code of ethics of the software engineering profession. For this reason, as an illustration of professionalism, Derek is obliged to report about new developments while working in the new company.

Personal Opinion and Conclusion

In the ensuing discussion, Aristotle’s form of deliberation is used to reason about the commentators’ explanations on the ethics of Derek’s case. This deliberative critical review begins with the premise that well-intended, knowledgeable and intelligent commentators who think rationally and cautiously about Derek’s ethical case may disagree. Typically, after an informed and thoughtful discussion, there is a possibility that a common line will be drawn from the different viewpoints presented by the commentators. Therefore, this discussion considers the position of all them. One of the points that is acknowledged by all the commentators is that Derek owes his former employer or member of the project team a contact regarding his intentions and the interests of his new employer in the source code. Additionally, there is a consensus that some basic principle of intellectual property, including trade secrets and copyright protection are essential in understanding this case. Evidently, the most fundamental and simplest steps that should be taken by software development companies in regard to trade secret protection is to ensure that commercially sensitive material is protected at all costs. The other important theme is the use of non-disclosure agreement (NDA). Despite the fact that it is always challenging to have an NDA in all software development environments, NDAs can be used to impose the obligations on developer to refrain him from using or disclosing confidential source codes to third parties. The use of such agreements or contractual terms cushions the original developers from being exploited by other developers of large companies, as in Derek’s case. Consistent with the commentators, the small firm would sue Derek if he supported the new company to implement the new system without their knowledge of copyright infringement [HYPERLINK \l “OEC92” 3]. In this case, the large company would be an accomplice in copyright infringement crime. Under this case analysis, a court would break down the allegedly infringed source code into constituent functional parts and then filter out non-protectable lines of code11]. Such a legal process would prove that there was an infringement and the culprits would get their punishment depending on a legal claim presented by the complainant.

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As software continues to be pervasive in the business environment, and its values from strategic and human perspective are brought to attention of both developers and users. Ethical and legal conduct are some those human values [HYPERLINK \l “Rob06” 1]. There are a number of reasons for discussing ethical and legal issues within the context of software engineering. By simply participating in a software development project, a software developer or any other member of the development team can influence the final software product in different ways, including those that may contradict the interests of the public. That is to say, developers can engage in illegal or unethical behavior, deliberately or inadvertently. Conflicts may also occur after the development and deployment of the software. Such unethical or illegal behavior may result in financial harm, and potentially lead to loss of trust in the entity that owns the software and loss of confidence in the software. Further, any illegal or unethical behavior around software engineering, for instance illegal cloning of copyrighted source code can question the credibility of the developer as professional software engineers. Additionally, these actions can result in legal implications and have a negative impact on the bottom-line of small innovative software development companies.

From the discussion and above it is apparent that there is a symbiotic relationship between ethic and law. Source code is covered by copyright laws, alongside trade secrets and contract law, which provides proprietary source code owners a legal basis for establishing exclusive rights. Ethically, software engineering is a profession guided by a code of ethics that demands the professionals in this discipline to act in morally permissible manner beyond what the market or legal system would have approached a moral ideal. In other words, only those with ownership rights are ethically and legally allowed to make the changes to proprietary software.

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