John L. King

This could be titled “How Much Do You Want to Keep Your Job?”

I actually like this: it is a real problem and it is short. But it needs a teaching note. On the surface there is no question here: it would be unethical for the technician to install the software. The case has a twist that some might not see that makes it so clear-cut. The technician is being asked to install the software on someone else’s computer, not the computer of the technician’s company. Were it the computer of the technician’s company, the technician could claim that he or she is only “following orders” for partner’s responsibility. But assuming the software has the customary “non transferability” clause, meaning the holder of the license cannot extend the license to others, the partner is not only creating liability for the technician but for the client, as well. And the partner knows “the client wasn’t interested in buying the program.” The partner has “promised” (the client, presumably) to install the program anyway. Is the client now an accessory? The partner has told the technician that the technician “shouldn’t worry because he [the partner] would make himself responsible.” I don’t see how the partner can “make himself responsible” for doing something that the client is liable for. As with most “property” cases this one touches on fairly well developed legal notions. The ethical thing for the technician to do is also the legally correct thing to do: to refuse to carry out the instructions.

As a practical matter, the technician probably has to weigh the extent and role of corruption in the situation, the consequences for refusal, and the protections for people who “do the right thing.” Ethics is not about always doing the right thing, but about being able to know the difference between right and wrong.

Whether one is selecting reviewers in an editorial role (journal, conference, proposal, etc.) or for commentary on one’s own work, it is important to realize that there are both substantive and ethical concerns to weigh. Fortunately, the substantive concerns can inform the ethical concerns if this critical point is borne in mind: the decision of what to do with the comments made by reviewers rests with the editor or author. Reviewing is not an election or a vote: sometimes the editor or author concludes that the reviewers are wrong, and goes ahead with what he or she originally had in mind. But of course, the whole point of getting reviews is to improve the work. In practice, few editors or authors ignore the comments of good reviewers.

Peer review is not perfect, but it beats just about all the alternatives. It does not make substantive or ethical sense to send something for review to people who, it is clear in advance, will trash it because they hate the author or the work, or will praise it because they love the author or the work. People whose views are “known in advance” do not contribute much to the process. It is ethically inappropriate to send work to people who are sure to trash it or laud it. This cannot be considered “fair” to either the author or the principles of peer review. The harder cases lie in the “gray zone” between the extremes of hate and love. In selecting reviewers it can make good substantive sense to send the work to those known to be critical of the author or the work because critical views sometimes reveal the flaws in the work. Whether those flaws are fatal, can be fixed, or are inherent in the work itself is a judgment call.

A critic who responds with nothing more than the usual dislike of the author or the work might not be helpful to the author or the review process, and possibly should be passed over for such reviews in the future. Similarly, those known to like the author or the work can provide helpful comments, and are often motivated to make the work better through their criticism. A fan of the author or work will not contribute simply by responding with a testimonial saying that the work is great, any more than a hater will help by simply saying the work is bad. In all cases, the objective should be to filter out work that fails to make a contribution, and to improve work that does make a contribution.

The corollary to the selection of reviewers is how to use reviewer comments. It puts authors in an impossible bind to ask them to meet the requests of contradictory reviews. If one reviewer says “do X” and another says “do not do X” it is doubtful the author can satisfy both reviewers. The editor must decide what he or she wishes to see. Process can help (e.g., requiring a certain minimum number of reviews, using various “blind” techniques to lower the likelihood that reviewers know authors or vice-versa, sending work out for additional review). Ultimately, however, the decision of what to do is a judgment made by the editor and/or author. Moral hazards exist in the selection of reviewers because publication in good venues has value in terms of promotion, compensation, reputation, etc. It is important to behave in an ethical manner in selection of reviewers. In most cases, sticking close to the ideals of the peer review process will provide good ethical guidance.

What should Derek do now? That’s the closing question of Part II of the case. The answer is clear: he should talk to the lawyers at the current company. I say keep this case. It is pretty realistic, and reflects problems many people face. This case illustrates nicely how the issues are both ethical and legal. It does need a teaching note, however. It is helpful to divide the case into ethical and legal issues. I’m not a lawyer, and lawyers might spot more than I do here. Legal Irrespective of whatever agreement Derek had with his previous company, the system in question is theirs: Derek is tweaking with “a few minor alterations” the “innovative software system he helped design at the small computer firm.” It is confusing to parse the language of the case, but it appears this innovative software system is the “lifeblood” of the firm. It is difficult to imagine any court saying otherwise. Derek’s current company appears to have deep pockets. They could be liable for substantial damages if they adopt this software that can be shown to belong to some other firm. If the current company is sued I would think the outcome would be bad for Derek, at least. If Derek uses this for himself neither the previous company nor the current company are likely to know. If the previous company finds out they might sue Derek, but he doesn’t have deep pockets, the new company didn’t know so getting at them might be hard (especially after they fire Derek), there is ambiguity about Derek’s rights in this case since he didn’t sign anything, and the previous company probably didn’t lose any real sales. But if the new company uses this widely all that could change. Ethical Derek knows this is the previous company’s “lifeblood.”

At the least he should ensure that the current company offers the previous company the sale or license opportunity if it goes beyond him. Derek owes his current company the warning that this could be (probably is) proprietary and that. He might “get away” with using it for himself, but it would be a bad idea to use it widely in the current company without talking to the previous company. Derek can always say (as can the current company to the previous company) that Derek was just testing to see if it worked. The current company probably buys all kinds of stuff – why not this? And the previous company would probably like the sale. Upshot Derek owes both an ethical and legal “duty of care” to both companies. Fortunately, neither duty of care excludes the other. Derek can honor both by doing the right thing: talking to the current company’s lawyers. They’ll know what to do.