Ethics and Fiduciary Duties


I figured that my article yesterday on Linux and IP would generate a little controversy. I was right. Here is an example of the kinds of comments I received:

I disagree. The short version of why I disagree is that if a company insists on doing things that are legal but unethical (or even immoral), the company should not be surprised and cry foul when those laws are then changed and their actions are made illegal retroactively. They will also have generated a lot of ill-will along the way.

While I agree that there are many things that are legal but still unethical, there is no bright line between the two. Consequently, each corporate officer has to make their own decisions. I've been in that position and you make them all the time. Its not always easy. People who think it is typically have the luxury of drawing a paycheck for simply producing code or operating a system. Not as much room for ethical controversies there (although there are some).

I don't agree that protecting intellectual property in and of itself is unethical. I also don't agree that using the legal or political system to gain advantages for your shareholders is, in an of itself, unethical. There are many action in each of those areas and countless others that are unethical, but that doesn't taint the whole area.

I love open source projects and have been a beneficiary of them since I started working on the Internet in the 80's. I also believe that there is significant promise in open source business models. I applaud companies like jBOSS and Jabber for exploring business models that are trying to that show open source is a viable way of creating shareholder value. I do not believe, however, that "information wants to be free" or that open source is inherently good and other models inherently evil.

Here's what would be unethical in the case of SCO: If the corporate officers of SCO, without the knowledge or approval of the board, were to simply decide, on the basis of their personal beliefs or desires, to ignore SCO's significant IP claims and open source their significant code base, they would be ignoring their fiduciary duty to their shareholders. However, if they have a real business plan that incorporates an open source strategy and board approves it, that's different story.

I don't think that the case of open source is advanced by simply labeling any attempt to protect IP claims "unethical" or "evil." That's too easy and doesn't carry much weight. What does advance it is to show people with the fiduciary responsibility to create shareholder value how they can best do that using open source. I think the juries still out on this one.