The distribution is called “Student’s t” because Cosset published it in 1 908 ender the pseudonym “Student.
” As Wisped tells the Story, “Another researcher at Guinness had previously published a paper containing trade secrets of the Guinness brewery. To prevent further disclosure of confidential information, Guinness prohibited its employees from publishing any papers regardless of the contained information. This meant that Cosset was unable to publish his works under his own name. He therefore used the pseudonym Student for his publications to avoid their detection by his employer. ” Was this ethical?There is ordinarily nothing wrong with publishing a good idea, UT the issue here is whether Cosset should have resigned before doing so, or at least told his employer what he was up to. Utilitarian Analysis Publishing Gusset’s clever and useful idea would no doubt maximize utility, but we are granting that it is K for him to publish it. The issue is whether being honest with his employer would create more utility than publishing under a pseudonym. Cosset can reasonably argue that dishonesty resulted in greater utility.
By remaining an employee for Guinness, he was able to put his ideas immediately to work at a major brewery.If he had quit or lost his job, their application might have been delayed for years despite being published. Gusset’s pseudonymous publication therefore not only passes the utilitarian test, but it was obligatory because it created more utility than the alternative?unless it fails some other condition for ethical conduct. We examine this next. The Legal Situation It is normally unethical to break the law, including the law of trade secrets, because breaking the law is normally unchallengeable. However, intellectual property law is a tricky area, especially when one tries to apply it retrospectively.I don’t know whether Cossets publication was legal in Ireland n 1908. Let’s assume it was and focus on the ethical issue.
Theft of Intellectual Property? One might argue that Gusset’s publication of his idea was theft of intellectual property and therefore unethical, whatever may have been the legal situation at the time. At a minimum, this requires showing that (a) the company owned the idea, and (b) it makes sense to own an idea. Current US. Law generally presumes that a company “owns” a trade secret developed by its employees, so let’s grant that the company owned Gusset’s idea if anyone did.But does it make sense, from an ethical point of view, to speak of owning or stealing an dead? Let’s first review why theft is unethical.
It is unethical because it fails the generalization test. The point of theft is to take possession of someone else’s property. If people stole whatever and whenever they wanted, it would be impossible to take possession in any meaningful sense. If I stole a car, someone would steal it from me five minutes later, defeating the purpose of the theft. Theft presupposes the institution of property, which presupposes that we respect other people’s property.So theft is unchallengeable. This argument breaks down, however, for Ideas. Although the term intellectual property’ has become popular in the last 20 or 30 years, an idea is not property in the usual sense.
No one can steal it. Theft is, by definition, taking possession of someone’s property without permission and with the intent of permanently depriving that person of its possession and use. However, I can take someone’s idea without depriving that person of the idea. Furthermore, I can still possess and use the idea even if someone takes it from me five minutes later.So it makes no ethical sense to speak of stealing an idea. This doesn’t mean that legal protection of trade secrets or patents as no ethical basis. Society can grant companies an exclusive right to commercial use of ideas for utilitarian reasons.
The protection need not be based on property rights in the usual sense. L We have established Gusset’s publication of his idea wasn’t theft, but it may have been unethical for other reasons. It may have violated an agreement with the company, and publishing under a pseudonym may have been dishonest. Let’s examine these possibilities.Breach of Agreement? Nowadays, companies often require professional employees to sign nondisclosure agreements, some of which are very restrictive. Breaking an agreement is unchallengeable and therefore unethical.
Yet I have no reason to believe that Cosset signed any such agreement, or that he made any explicit promise of nondisclosure when he joined the company. The company might argue that by taking a job, employees implicitly agree to abide by company rules as long as they are employed. Cosset reneged on this agreement when he violated the company’s rule against publishing.Again, breaking an agreement is unethical. It’s true that employees agree to abide by company rules, but only if they are rules that employees could reasonably expect might be imposed.
If Guinness ordered employees to swim the River Shannon in the middle of winter, they would have no obligation to comply. At the very least, the rule should have some bearing on the welfare of the company. However, if the company ordered them not to publish 1 In fact, European law has never assumed that trade secrets are intellectual property.It views revealing a trade secret as a breach of confidence and therefore an unfair trade practice. Articles critical of Guinness beer, they are bound by the order. This affects company success, and it is something employees might expect the company to require.
By this standard, the prohibition against all publication is out of line. Merely publishing something need not affect company welfare, and there is no reason an employee would expect Guinness to impose such a blanket rule. If Cosset had published a book of poetry, he clearly would have broken no agreement with the company.
However, implicit in the rule not to publish anything is a rule not to publish valuable ideas that the company IS using. Cosset broke this rule, and it is relevant to the company’s welfare. Cosset might argue, however, that relevancy is not enough. The company might order him to walk the streets Of Dublin wearing a Guinness beer costume, which may affect company welfare but is not something he could have expected the company to ask him to do. The issue, then, is whether Cosset could have anticipated a company rule against publishing his own ideas.
It’s not clear that one could anticipate this even today.One might argue that nondisclosure agreements exist precisely for this reason. They alert employees to nondisclosure rules they might not have expected otherwise. No employee would be surprised if the company prohibited publication of trade secrets learned from the company.
But employees might not expect the company to prohibit dissemination of their own work. Note that the uncertainty here is over a question of fact, not a question of ethics. The question is whether there was an implicit mutual understanding, between Cosset and the company, that a nondisclosure rule might be imposed.Arguably, if there is any uncertainty about the terms of an implicit agreement, those terms don’t exist. One can’t agree to something without knowing one has agreed to it. This is not to say the company would have no right to fire Cosset if it found out he had published his idea. Just as Cosset didn’t agree to abide by a nondisclosure rule, the company didn’t agree not to impose such a rule. In fact, the company could have ethically fired Cosset at any time, for any reason, unless this would have violated some clause in the employment contract (or would have been nutritional).
Dishonesty Even if Gusset’s publication violated no agreement with the company, his publication under a pseudonym might have been unethical because it was dishonest. He misled the company about what he was doing. He should have come clean and given the company a chance to fire him?not for violating an agreement with the company, but for violating a company rule that he never greed to obey. The issue, then, is whether employees are obligated to tell the company when they violate its rules.
If Guinness ordered its employees to swim the River Shannon in midwinter, would those who refused to do so have an obligation to turn themselves in? Failure to report one’s own violation of a company rule is normally generalize. Failure to self-report is more or less generalized already, because employees usually rely on the company to catch their violations rather than confessing (unless there is some special reason for self-reporting, such as a lighter penalty). However, there may be more at issue here than failure to self-report.
Cossets publication under a pen name may have deceived the company. Deception is normally unchallengeable, because it wouldn’t work if it were generalized. The test for deception is whether Cosset caused company executives to believe something he knew Was false. Failure to reveal information can be deceptive.
To use my favorite example, suppose my physician tells me about the results of lab tests but omits one bad result. This is deceptive even though the physician says nothing false. It is deceptive because the physician creates an evidence base that leads me to live, falsely, that am healthy.I take the physician’s failure to mention any bad results as evidence that there are none. We therefore ask whether Cossets pseudonymous publication and failure to mention it created an evidence base that caused his employer to believe that he was not publishing. Maybe or maybe not, depending on the historical circumstances. One way to test this is to imagine what company executives would say if asked if Cosset is publishing.
They might respond, “Actually, haven’t thought about it,” or, “l really don’t know,” or “l have no particular reason to believe he s publishing, but I haven’t checked up on it. In this case they don’t hold a belief that Cosset is not publishing, even though they don’t hold a belief that he is publishing, either. Cosset is therefore not causing them to believe something he knows is false. On the other hand, they might respond, “He’s not publishing, because he is an honest fellow and would have told us if he were,” or “Cosset isn’t publishing because I haven’t seen anything in the statistical literature with his name on it. ” In this case, they believe something Cosset knows is false, and Cosset created an evidential situation that led hem to believe it.
Conclusion Cossets publication Of his idea under a pseudonym was not theft Of intellectual property, from an ethical point of view. It violated no explicit or implied agreement with the company. The issue rides on whether, given the historical circumstances, it caused company executives to believe falsely that he was not publishing. If so, Gusset’s publication was unethical. If not, then it was ethical if it was legal, and in fact was obligatory for utilitarian reasons.
However, the company would still have a right to fire him if it found out about his publication.