Just when I am feeling like some people in the copyright industry are getting their act together, there are news that make me rethink my patient and measured approach to the issue of global intellectual property. The International Intellectual Property Alliance (IIPA) has submitted this year’s Special 301 recommendation list to the United States Trade Representative. For those unfamiliar with this figure, the Special 301 status is the biggest stick in the USTR arsenal, it is the equivalent of being placed in the trading naughty list. One of the most infamous features of the list is that it allows various industry organisations to submit their recommendations on who should be named and shamed this year.

I am neither surprised nor upset by the addition of Costa Rica to the list, to be fair our enforcement is atrocious. Similarly, I am not surprised by most of the other recommendations, which seems like a rehash of past offenders. What I found rather surprising is that the IIPA seems to be using their Special 301 submission to attack open source software. According to Digital Copyright Canada, several countries are being included in the Special 301 watchlist because they have open source-friendly policies, or in their words, the IIPA would rather people “pirate” than switch to legal competitors.

This is quite a claim, so I have been going through the reports to verify it myself. The country reports for Brazil, India, Philippines, Vietnam and Thailand certainly contain some comments about open source software. Particularly, the IIPA seems to be concerned that these countries have enacted or are in the process of enacting legislation that will make it obligatory for public entities to choose open source software over its proprietary counterparts. I have to admit that I somewhat share the IIPA’s concerns in this regard. I have never believed in open source procurement legislation, I think that forcing institutions to use a specific technical solution is wrong. Open source is an organic, bottom-up movement, and making it state policy seems not only counter-productive, but contrary to the very same principles of openness. Open source should not be imposed, it should win on its own merits.

Nonetheless, the country report for Indonesia is a different matter altogether. The IIPA comments:

“The government of Indonesia, under its Ministry of Administrative Reform (MenPAN), officially sent to all central and provincial government offices, including state-owned enterprises in Indonesia, Circular Letter No. 1 of 2009 issued on March 30, 2009, endorsing the use and adoption of open source software within government organizations. More specifically, the MenPAN letter, concerning the “Utilization of Legal Software and Open Source Software (OSS),” encourages government agencies to use “FOSS” (Free Open Source Software) with a view toward implementation by the end of 2011, which the Circular states will result in the use of legitimate open source and FOSS software and a reduction in overall costs of software.”

Wait a second, this is not making any imposition, it is making a recommendation that the adoption of open source software will decrease piracy and reduce costs. This surely is a good thing? Not according to the IIPA, they equate promotion and endorsement with anti-competitive practices that will stifle market entry by proprietary software. The IIPS explains why this is not a good thing:

“While IIPA has no issue with one of the stated goals of the circular, namely, “reducing software copyright violation,” the Indonesian government’s policy as indicated in the circular letter instead simply weakens the software industry and undermines its long-term competitiveness by creating an artificial preference for companies offering open source software and related services, even as it denies many legitimate companies access to the government market. Rather than fostering a system that will allow users to benefit from the best solution available in the market, irrespective of the development model, it encourages a mindset that does not give due consideration to the value to intellectual creations. As such, it fails to build respect for intellectual property rights and also limits the ability of government or public-sector customers (e.g., State-owned enterprise) to choose the best solutions to meet the needs of their organizations and the Indonesian people. It also amounts to a significant market access barrier for the software industry.”

So, reducing costs and piracy translates into denying companies access to the market and affects innovation. Read here, Microsoft and others will have to compete with Open Office. I am baffledby the mindset that believes encouraging public institutions to use legitimate and free open source software solutions “does not give due consideration to the value to intellectual creations”. Chew on that phrase for a moment. Open source software has no value because it is free, so anything that encourages open source has the opposite effect, namely, it “fails to build respect for intellectual property rights”.

It is nice to know where the IIPA stands. Only commercial intellectual property is worthy of protection, everything else is as bad as piracy.


87 Comments

Ian Eiloart · February 22, 2010 at 7:49 am

An interesting analysis. And, I'd support everything you say here, but I'd go further. There are some clear advantages that OSS have, which may be legitimately be regarded as requirements for Government purchases. I'm not sure that I'd go as far as saying that a purchaser should limit themselves to OSS, but that requirements might legitimately be framed in a way that gives OSS strong advantages.

First, you may well want to see the source – in the same way that you'd want to know the materials used in a new building. If you need to be able to verify the correctness of code, for example in a voting mechanism or a life-support mechanism, then sight of the code may be a legitimate requirement. Of course, that can be achieved without OSS. OSS is a sufficient but not necessary condition that would satisfy this requirement.

Second, you may want to avoid lock-in and future support and purchasing costs. So, you might legitimately require that the software store data in an open format, or that it is capable of importing and exporting data in open formats, without loss of information.

Third, you may want to guarantee future life of the software, even in changing environments. That might mean that you want to hire third parties to maintain the software in the event that the vendor ceases to offer the service. A contract doesn't provide that guarantee, it just provides some recompense in the event that the vendor can't provide that support. Availability of source code and compilers, and the right to modify, recompile and use the modified code may be a legitimate requirement.

Fourth, you may require to redistribute the software to other government bodies, to local authorities, to health providers, and other government partners. That might include code that you've modified.

Now, I guess that I'd agree that specifying an OSS license might not be the best way to express these requirements. It's possible that a good vendor of closed software might give you the code, and the right to modify it and share it with specified partners. But, it might just be simpler, more efficient, and safer to specify OSS in the first place!

free isn't free · February 22, 2010 at 12:55 pm

seems to me that "free" is not a viable business option.

i'm pretty sure that everyone wants things to be free

but what happens when you try to run your "profit" business

using "free" and can't get support? sven the seventeen year old

from sweden sure isn't going to support your enterprise requirements

and the "free" as in "pay for support" is not really "free"

"the bums lost lebowski"

    Rodger · February 23, 2010 at 2:39 am

    I guess free being a non-viable business option is why Red Hat are a profitable company with a five and a half billion dollar market cap, while Sun spent the last year or so begging someone to buy them before they go broke.

    anon · February 26, 2010 at 1:18 pm

    Totally true. Who on earth would want to use such a fly-by-night "product" such as apache. Much better to pay a substantial amount for IIS, then you know you are paying top notch for quality software.

Jerry · February 22, 2010 at 2:53 pm

"free isn't free"

So then the ONLY software appropriate for ANY business is commercial?

Matt · February 22, 2010 at 4:03 pm

"free isn't free" hasn't the slightest idea what he's talking about. If you read his post and thought, "Yeah, good point," please disregard him.

Free certainly *isn't* a viable business option (in the sense that a company that has no income will… have no income), but that's not what anyone here is talking about. We're talking about governments deciding to use or standardize on FOSS rather than proprietary solutions, and the IIPA claiming that this will be bad for everyone. They of course make the same logical blunder from time immemorial, which is equating "the best solution available in the market" with "proprietary solutions provided by for-profit corporations," ignoring the fact that if a solution locks you in, it is less likely to be the "best solution available." The same goes for solutions that you cannot modify, extend, or upgrade yourself.

I (and many others) argue that, at least in some cases, FOSS is superior to proprietary (that is, "the best solution available in the market") precisely because it is open. My company can take Apache, modify it, extend it, do whatever we want to make it meet our needs. Can we do that with IIS?

Free is Free, Money · February 22, 2010 at 6:08 pm

I use the English language, as I choose without paying anyone. Sure there is an issue that I had to pay for support by buying a dictionary, but I would have to do that with a proprietary spoken and written language.

Open source software reduces profits for some corporate interests. Having established associations to increase profits by reducing sharing of proprietary software, why not try to increase profits by attacking open source software?

Corporations have an obligation to maximize profits, so they are not moral, and don't respect the laws themselves any more than they need to.

    Carlos · February 23, 2010 at 5:44 am

    So true! A corporation wants to make money. If they can increase their profit by reducing piracy, they will help preventing it. If preventing open source increases profit, they will try to do that too.

smart pirate · February 22, 2010 at 6:59 pm

I will encourage everyone I know to pirate everything. I will not give into mafiaa.

goldenrail · February 22, 2010 at 7:17 pm

The Special 301 report has also listed countries for having fair use included in the country's copyright law. I wouldn't read too much in to the Special 301 reports.

    Andres · February 23, 2010 at 1:02 am

    Special 301 status can have detrimental effects, as trading quotas could be slashed, or tariffs might be imposed on select items.

atom · February 22, 2010 at 7:20 pm

@ smart pirate

piracy supports a base of the pirated product, which supports lock-in and dependence. if a school uses pirated M$ software, the kids are still learning that everything is M$. give the kids linux and watch bill gates squirm, knowing that these kids will grow up and never even miss him.

Vik Olliver · February 22, 2010 at 7:21 pm

"smart pirate" no, don't get them to pirate software. Use the Open stuff. It's better quality, has easier upgrades, won't get you visited by the BSA Goon Squad and still costs nothing. Plus you can modify it to suit your own needs. Yes, Open software is better than pirated software.

noise · February 22, 2010 at 8:38 pm

Jerry wrote:

"seems to me that “free” is not a viable business option.

i’m pretty sure that everyone wants things to be free

but what happens when you try to run your “profit” business

using “free” and can’t get support? sven the seventeen year old

from sweden sure isn’t going to support your enterprise requirements

and the “free” as in “pay for support” is not really “free”"

So what happens when a company that was supposed to support your closed source application goes out of business? Or stops supporting your product for whatever reason?

With Open Source you are free to have the code maintained by who you chose including your own company.

Martin · February 23, 2010 at 3:03 am

"even as it denies many legitimate companies access to the government market."

Companies that uses open source are then illegitimate (unlawful; illegal, according to dictionary.com) companies.

I wonder how IBM, Microsoft, Oracle etc. likes to be called illegal companies and what companys should we use if if all the large one are unlawful to use.

Anders · February 23, 2010 at 3:49 am

Hi,

Thanks a lot for your post. I agree a lot with you so I hope you will appreciate that I only point out the small section that I disagree with.

<cite>

I have never believed in open source procurement legislation, I think that forcing institutions to use a specific technical solution is wrong. Open source is an organic, bottom-up movement, and making it state policy seems not only counter-productive, but contrary to the very same principles of openness. Open source should not be imposed, it should win on its own merits.

</cite>

I think there is a lot that is wrong with that paragraph

1) Mandating free and open source software is not the same as mandating a specific technical solution. It is a mandate on what level of ownership the buyer (and society as a whole) should have.

2) Free and open source software is all about openness and freedom. But mandating openness and freedom is much more in line with those ideals than supporting closedness and unfreedom.

3) An open source mandate is FOSS "winning on its own merits". It is exactly a choice away from the copyright-subsidised, proprietary world we live in now and a choice for something better. Otherwise, if proprietary software should "win on its own merits" it should do so without the artificial subsidy of copyright, but I don't see that happening.

Best

Anders

Jon · February 23, 2010 at 4:04 am

@Anders

"it should do so without the artificial subsidy of copyright, but I don’t see that happening."

That's why I always read "copyright" as "copy-exclusion", just like I read "digital rights management" as "digital restrictions management".

Uncle B · February 26, 2010 at 5:52 am

One day,the greedy capitalists and corporatists will corrupt another American judge, and be granted patent rights of "American English" another living language, but more commonly used. Then we will all understand "Open Source"!

mike · February 26, 2010 at 7:57 am

Scrolling to the very bottom reveals how hypocritical the author is. The blog uses WordPress – Open Source.

    Andres · February 26, 2010 at 8:23 am

    Er… may I ask which author are you referring to? Did you read my article?

      Scott Herbert · February 26, 2010 at 9:41 am

      Andres, he didn't read it, he just scrolled stright to the bottom.

      LOL 🙂

Lasse · February 26, 2010 at 11:50 am

Very interesting, and very disturbing also..

ab · February 28, 2010 at 6:21 am

The western are gone mad they dictatorship to regulate everything for their own "in-money-we-believe" interest.

The real issue is those guys have gone completely insane, bombing the world out. The more crimes they commit the more savage they go to cover themselves. How many disasters should we afford before action is taken to get reed of those foolish?

Richard M Stallman · March 1, 2010 at 4:42 am

I don't recommend that governments legislate requirements for "open

source" software. Open source is just a development methodology, and

users need not care how a program was written as long as the program

itself is good. Instead of open source, I advocate something that

really affects the user: free/libre software.

For a program to be good, it must respect your freedom — it must be

free software (see http://www.gnu.org/philosophy/free-sw.html). A

non-free (proprietary) program gives the developer power over the

users; it makes them surrender control of their computing to the

company that controls the program. Using proprietary software is

being a sucker.

If you or I surrender control of our computing, that's a shame. If a

government does so, it's a dereliction. Public agencies have a

responsibility to maintain control over the computing they do on

behalf of the citizens, so they must insist on free/libre software

all the time. Use of a proprietary program in government should

be defined as a threat to national security, and ruled out entirely.

See http://www.gnu.org/philosophy/open-source-misses-
for more explanation of how free software differs from open source.

In effect, the IIPA has asked the USTR to demand that other

governments be suckers, or face punishment by the US. This is the

sort of thing that the USTR usually does: just look at the WTO, NAFTA,

and now ACTA. All these actions make no sense in terms of justice or

the public good, but those are not the goals of the USTR. Its goal is

to benefit the companies that the US government serves.

The IIPA begins its attack on clear thought with the use of the term

"intellectual property". This term lumps together laws that have, in

practical terms, nothing in common, including patent law, copyright

law, trademark law, trade secret law, and a dozen others. The term

focuses on a small abstract similarity which is irrelevant to

practical issues, and thus distracts attention from those issues. Use

of the term "intellectual property" leads to discussions of how many

copyrights and patents can dance on the head of a pin.

To counter the harm that the IIPA does, we need to expose the

distraction in its propaganda term, and then carefully avoid using

that term when formulating our thoughts and words. See
http://www.gnu.org/philosophy/not-ipr.html for more explanation of why

this term is harmful.

TK · March 1, 2010 at 12:26 pm

What bugs me about the foundational premise being used in the anti-FOSS argument is the idea FOSS is anti-copyright amongst other nonsense. The very legal basis for FOSS licenses is copyright where anyone can view and modify the source code as long as you afford the same freedoms to others. Violate the terms of the license, you violate the copyright! This is the teeth behind FOSS where, in most licenses, some company cannot grab FOSS code, warp it somehow, and release it without giving the initial benefit they enjoyed to everyone else. Have a look some of the lawsuits on behalf of FOSS projects and what the legal foundations are – copyrights!

Where the IIPA states, "…[FOSS] encourages a mindset that does not give due consideration to the value to intellectual creations. As such, it fails to build respect for intellectual property rights…," this makes a huge hopeless leap in logic with no supporting reason behind the idea. Are they simply hoping no one will think this through, that people will see these words and think they are true simply because someone wrote them? Really??? FOSS encourages Freedom, including the original authors, hence most certainly does give due consideration to valid, quality software creation. If the IIPA is also trying to state FOSS doesn't care about trademarks, patents, and other disparate creations they lump into the term Intellectual Property, incorrect! For a big example, look at the brouhaha made over Mozilla's trademark and why there exists such a browser called Iceweasel.

Where law should be logical, the IIPA has made so many illogical arguments and fallacies (I see Appeal to Emotion and Slippery Slope right off the bat) that they should be laughed out of the various government halls.

dima · March 1, 2010 at 9:13 pm

interesting that it would be if it were not: perl, linux, unix, etc?

Democrats have struggled for supremacy

Curt Sampson · March 3, 2010 at 2:11 pm

free isn't free asks, "[W]hat happens when you try to run your “profit” business using “free” and can’t get support?"

Speaking as someone who's developed and managed systems in quite a few businesses where IT was a critical component, you've got it backwards. It's generally considerably easier to deal with problems in open-source software than it is in proprietary software. I've had plenty of things blow up and been unable to get relief from the vendor and, with proprietary software, if the vendor doesn't help you you're stuck.

With open source, on the other hand, you a) have the ability to go to another vendor if your current one isn't helping to fix your problem, and b) have the opportunity to develop in-house development expertise with the system.

The second point is a huge benefit for mission-criticial systems, because it means you've got resources you can immediately and directly apply to your needs. This not only can get you fixes and improvements you might not be able to get otherwise, but can get you them a lot more quickly. (Precisely identifying technical issues is considerably easier for an experienced developer of a piece of software than for a user.)

This doesn't apply particularly to software on which you're spending a small amount of money, such as a few thousand dollars a year. But for very critical software, spending one or two hundred thousand dollars a year to have a full-time developer for that software in-house can be very worthwhile.

buhu · March 4, 2010 at 8:14 am

All this talk about "free isn't free, think about support etc" seems a bit hypocritical to me. Granted, certain tasks do need specialized software and 24/7 support. But the vast majority of people only needs an office suite to get their work done.

How much support do you need using OpenOffice? And how much "support" did you ever receive from Microsoft while using MS Office?

Curt Sampson · March 5, 2010 at 1:07 am

Richard

I find your comment rather strange. First, the GPL license is all about restricting how people can use GNU software: if it were not, you could simply put the software into the public domain rather than licensing it. Second, the GPL relies on the whole idea of "intellectual property"; it that framework that you use to enforce it.

cjs@cynic.net

    Roy Millar · March 25, 2010 at 10:39 pm

    It's perhaps an amusing irony that GNU successfully uses the system to limit the excesses of the system.

    I see that you're still in Japan. And doing well.

Anders · March 5, 2010 at 3:00 pm

Here's Tim Lee explaining much better than me why the "open source" is not a "specific technical solution";

http://timothyblee.com/?p=2559

with rented and purchased cars as an example.

    Andres · March 5, 2010 at 3:47 pm

    Dear Anders,

    I agree with you that perhaps the term "specific technical solution" is not the best way to describe open source, it can be a philosophy; a developing strategy; a licensing scheme; a business model, but it is not necessarily a technical solution.

    By the way, on a shallow note, it must be nice to be called Timothy B. Lee 🙂

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