Congress does have the constitutional authority to extend the terms of

existing copyrights [33].

In a 7–2 decision the US Supreme Court ruled in favor of the government

and the entertainment industry, stating that the petitioners did not
demonstrate how the CTEA had crossed “a constitutionally significant
threshold.” In the opinion of the Court, “Those earlier Acts did not create
perpetual copyrights, and neither does the CTEA” [34].

4.3.5 Case Study: The Database

Guru
Arjun worked for five years as a software engineer at Felicity Software, a
company that sells database systems to consumers and small
businesses. During his time at Felicity, Arjun implemented some clever
software optimizations that significantly improved the performance of the
database systems sold by Felicity. The company treated the
optimizations as trade secrets. It labeled the software as confidential
information and took measures to restrict access to the source code to
Arjun and a few other software engineers who helped Arjun implement
and test the system.

On his first day with Felicity, Arjun had signed an employee confidentiality
and proprietary rights agreement. Signing this agreement was a condition
of his employment. In this agreement Arjun had indicated that he
understood and acknowledged the following:
 1. He would have access to confidential, secret, and proprietary
information related to Felicity’s business.
2. Felicity placed “great competitive importance and commercial
value” on its ability to reserve confidential information for its
exclusive use.
3. Confidential information he developed would be covered by this
agreement.
4. He would not “directly or indirectly disclose, publish, communicate
or make available” confidential information to anyone outside of
the company.
5. His obligations under the agreement would “continue during and
after his employment” by Felicity [35].

After completing the database project at Felicity, Arjun began looking for
the opportunity to join a software start-up. With a good reputation in the
tight-knit local tech community and strong references from coworkers and
managers who praised his talent, work ethic, honesty, and teamwork
skills, Arjun quickly found employment at Unrelated.com, a start-up
company in a nearby office park.

Unrelated.com plans to support people doing genealogical research. It is

developing a proprietary database system that will be used to store
genealogical information. Unrelated.com has no plans to sell the
database software. Instead, its income will be derived from the monthly
fee users pay in order to access the company’s database through the
Web or a mobile app. Unrelated.com hopes to acquire hundreds of
thousands of subscribers. That means its database system must be
capable of quickly responding to queries from 10,000 or more users
accessing the system simultaneously.
Arjun’s title at Unrelated.com is vice president of software. He
supervises several teams of software developers. One of these teams is
responsible for implementing the genealogical database system and
optimizing its performance. As the project progresses, Arjun realizes that
some of the technical solutions proposed by the members of his team are
not as good as the solutions he developed for Felicity’s database
product. The team’s preliminary software implementation is unlikely to
result in a database system with satisfactory performance when it is
being accessed by more than about 5,000 users. In Arjun’s judgment
significant optimizations are needed before the system is ready to deploy.

Arjun believes he has two viable alternatives. The first option is to follow
a “clean room” strategy. He would isolate himself from the team’s work
product, but he would provide the team with publicly available information
on database optimization strategies—in other words, the books, journal
articles, and conference papers he benefited from when he implemented
the database system optimizations at Felicity. Based on his expertise,
Arjun would also provide the team with realistic performance targets that
the various components of the database system should be able to meet.

The second option is to become personally involved in making the

necessary performance improvements. Arjun believes that if he asks the
right questions, in fairly short order he can get the team to rediscover the
optimizations he developed for Felicity’s database product without
actually telling them how to do it.

Which option should Arjun take?

Kantian Evaluations
The first option is innocuous. Arjun is sharing his expertise with the
development team without disclosing any confidential information. He is
not violating the employee confidentiality and proprietary rights
agreement he signed with Felicity. The moral rule, “You should share
your expertise with others,” can be universalized without contradiction.
From a Kantian perspective, this option is morally right.

In the second option, Arjun’s will is to get the team to know what he
knows without directly communicating the information. Presumably, if he
asks questions in a general way, akin to a college professor posing
questions for a homework assignment, the members of the team will be
able to discover ways of improving the performance of the database
software. However, by taking this course of action, Arjun runs the risk of
asking the team leading questions—more specifically, propositions
disguised as questions that require simply a yes or no answer.
Communicating confidential information, even phrased as questions, is
prohibited by the confidentiality agreement Arjun signed with Felicity. In
this agreement Arjun stated that his obligation not to reveal confidential
information outside the company would continue after his employment
with Felicity ended. Breaking this contract is equivalent to breaking a
promise, and as we saw in Section 2.6.1 , it is wrong to break a
promise. From a Kantian point of view, this option is morally acceptable
only if Arjun can get through the entire line of questioning without asking
a leading question. If anywhere in the process he asks a leading question
that reveals optimizations he developed by Felicity, this option would be
morally wrong. Given the complexity of the system to be implemented,
Arjun’s desire to help the team discover the optimizations, and the fact
that he may feel pressed for time because he is helping the team in
addition to his normal job responsibilities, it seems unlikely he would be
able to avoid asking leading questions. From a Kantian perspective, this
option is morally dubious.

Social Contract Theory Evaluations

Both evaluations from the perspective of social contract theory are similar
to the Kantian evaluations. In the first option, Arjun is helping the team
without violating any agreements. The action is morally right.

The morality of the second option hinges on whether Arjun can avoid
communicating confidential information he acquired while at Felicity. As a
condition of his employment at Felicity, Arjun signed a confidentiality and
proprietary rights agreement, and there is no overriding moral concern in
this situation that would justify his breaking this agreement. If Arjun can
engage with the team and avoid asking leading questions, his actions
would be morally acceptable, but if he asks any leading questions, that
would be wrong.

Act Utilitarian Evaluations

The affected parties are Arjun, Unrelated.com (its employees and
investors), and the future customers of the genealogical research system.
We will evaluate the expected consequences of each option on Arjun’s
standing and reputation within the company. For Unrelated.com’s
employees and investors, we will estimate the consequences of each
option with regard to the time and cost of implementing the database and
the risk of litigation from Felicity. With respect to the customers, we will
estimate the consequences of each option on the ultimate performance
of the system they will be using. The magnitude of the benefits calculated
for Unrelated.com will be much larger than the magnitude of the benefits
calculated for Arjun because the company has many employees and
investors, so benefits and harms to Unrelated.com are much more
significant than benefits and harms to Arjun alone. The magnitude of the
benefits calculated for Unrelated.com and the customers of
Unrelated.com will be roughly the same. While the number of potential
customers is much greater than the number of employees and investors
of Unrelated.com, the performance of this particular Web site is much
less important to each customer than the importance of the company’s
success is to its investors and employees.

In the first option, Arjun sets up a “clean room” environment for the
database team to develop its optimizations. Arjun provides a valuable
service to Unrelated.com by providing the team with relevant information
in the form of books, journal papers, and conference articles, as well as
realistic performance targets. As a result, Arjun’s standing and reputation
within Unrelated.com should increase (+2). The project is delayed,
increasing the time and cost of implementing the database, a negative
result (−20). Arjun is not working with the team developing the software,
so there is no risk that he would communicate confidential information he
acquired while working at Felicity. Therefore, there is no risk of litigation
from Felicity (0). Arjun’s decision to send the team back to the drawing
board will enable the team to improve the performance of the software,
yielding a higher-performing system that will be a positive benefit to the
potential customers (+40).

In the second option, Arjun works with the team, asking the members
open-ended questions that enable them to discover for themselves the
database optimizations. The project is still delayed, but with Arjun’s help,
the team should be able to come up with the solutions more rapidly than
in the previous option. The expected time and cost of implementation is
slightly negative (−10). We can expect Arjun to keep at it until the team
has developed optimizations that result in a significantly higher level of
performance. There is a chance that Arjun may become impatient and
ask the team leading questions in order to help the team move in the
right direction. That would create the possibility of legal action by Felicity,
which would be a strongly negative outcome for Unrelated.com. The
chance that this would actually occur is equal to the probability that Arjun
would divulge confidential information and Felicity would discover what
he has done and the legal department at Felicity would conclude there is
a legal case and Felicity would choose to litigate against a company that
is not a direct competitor. We conclude the probability of all these events
happening is very low, and we set the expected outcome for
Unrelated.com with regard to its risk of litigation to be only slightly
negative (−5). By demonstrating his technical prowess in the area of
database design, Arjun’s reputation and standing at Unrelated.com is
likely to increase, but in the unlikely event Felicity sues Unrelated.com,
he will be in serious trouble. Adding these two terms, we determine the
expected consequence to Arjun to be slightly positive (+1). Arjun’s
decision to work with the team to improve the performance of the
software will result in a higher-performing system, a positive benefit to the
potential customers (+40).

The anticipated consequences of the two courses of action are

summarized in Table 4.2 . Which plan is preferable? From an act
utilitarian perspective, the overall benefit of option 1 is 22, and the overall
benefit of option 2 is 26. The overall expected benefits of option 2 are
higher, making it the better option.

Table 4.2
Summary of an act utilitarian evaluation of the two options facing Arjun.
Course of Action

Affected Parties (a) Set Up Clean (b) Ask Team “Right

Room Questions”

Arjun +2 +1

Employees and shareholders of

Unrelated.com

Development cost and time to −20 −10

market

Litigation risk 0 −5

Customers +40 +40

Overall benefit +22 +26

Virtue Ethics Evaluation

Arjun holds a position of responsibility at Unrelated.com. He is
responsible for recruiting, developing, and retaining high-quality
employees who can create value for the company. Through his
supervision of the software development teams, he must do all he can to
ensure that they produce systems that work well and contribute to the
company’s financial success. As an officer of the company, he must avoid
doing anything that puts its future in jeopardy.

Setting up a “clean room” development environment to help the team

create a database system with higher performance is consistent with his
responsibilities as a manager and company officer.

In the second option, Arjun would become personally engaged with the
team, asking the questions that would help the programmers to quickly
identify crucial database optimizations. Arjun would have to spend extra
time at work, because he would also have to keep up with his other
responsibilities. The willingness to work hard for the benefit of their
employees and their company is a characteristic of good managers.
Sharing expertise is another laudable characteristic of good managers.
However, in this option Arjun is running the risk of putting himself in a
situation where he gets impatient, reveals an optimization he developed
at Felicity, and violates the confidentiality agreement he signed. That
would be dishonest, and dishonesty is not a characteristic of a good
employee or a good manager.

The prudent choice for Arjun is option 1.

Conclusion
From the perspectives of Kantianism, social contract theory, and virtue
ethics, the right thing for Arjun to do is to set up a clean room
development environment for his software team and supply the team with
publicly available information about database optimizations. Our act
utilitarian analysis has reached the conclusion that the other option is
preferable; Arjun should engage the members of the software
development team and ask them open-ended questions until it
rediscovers the optimizations he discovered while working for Felicity
Software. Note, however, that a more risk-averse act utilitarian analysis
would have assigned a negative number of greater magnitude to the term
corresponding to the risk of litigation. If the harm of litigation in option 2
were increased from −5 to −10 or more, the overall benefit of option 2
would be lower than the overall benefit of option 1, and option 1 would be
the preferred choice.