[Commons-Law] IIPA argues free software "weakens the software industry"

[Pranesh Prakash]

Dear all,
Here's some interesting news on IIPA's absurd moves against 
Free/Libre/Open Source software adoption in governments.

http://www.guardian.co.uk/technology/blog/2010/feb/23/opensource-intellectual-property

> Example: last year the Indonesian government sent around a circular to all government departments and state-owned businesses, pushing them towards open source. This, says the IIPA, "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".
>
> Nothing wrong with that, right? After all, the British government [has said it will boost the use of open source software][10].
>
>  [10]: http://news.bbc.co.uk/2/hi/technology/7910110.stm
>
> But the IIPA suggested that Indonesia deserves Special 301 status because encouraging (not forcing) such takeup "weakens the software industry" and "fails to build respect for intellectual property rights".
>
> From the recommendation:
>
>> "The Indonesian government's policy... 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.
>
> Let's forget that the statement ignores the fact that there are plenty of businesses built on the OSS model (RedHat, Wordpress, Canonical for starters). But beyond that, it seems astonishing to me that anyone should imply that simply recommending open source products - products that can be more easily tailored without infringing licensing rules - "undermines" anything.
>
> In fact, IP enforcement is often *even more strict* in the open source community, and those who infringe licenses or fail to give appropriate credit are often pilloried.

- Pranesh
----------------

It's only Tuesday and already it's been an interesting week for the 
world of digital rights. Not only did the British government [changed 
the wording around its controversial 'three strikes' proposals][1], but 
the secretive anti-counterfeiting treaty, Acta, [was back in the 
headlines][2]. Meanwhile, a US judge is still deliberating over the 
[Google book settlement][3].

  [1]: 
http://www.guardian.co.uk/technology/2010/feb/23/mandelson-decide-internet-suspension
  [2]: 
http://www.guardian.co.uk/technology/blog/2010/feb/22/breakfast-briefing
  [3]: 
http://www.guardian.co.uk/technology/2010/feb/17/google-books-copyright

As if all that wasn't enough, here's another brick to add to the 
teetering tower of news, courtesy of **Andres Guadamuz**, a lecturer in 
law at the University of Edinburgh.

Guadamuz [has done some digging][4] and discovered that an influential 
lobby group is asking the US government to basically consider [open 
source][5] as the equivalent of [piracy][6] - or even worse.

  [4]: 
http://www.technollama.co.uk/encouraging-open-source-could-land-you-in-trouble
  [5]: http://www.guardian.co.uk/technology/opensource "More from 
guardian.co.uk on Open source"
  [6]: http://www.guardian.co.uk/technology/piracy "More from 
guardian.co.uk on Piracy"

What?

It turns out that the [International Intellectual Property Alliance][7], 
an umbrella group for organisations including the MPAA and RIAA, has 
requested with the US Trade Representative to consider countries like 
Indonesia, Brazil and India for its "Special 301 watchlist" because they 
use open source [software][8].

  [7]: http://www.iipa.com/
  [8]: http://www.guardian.co.uk/technology/software "More from 
guardian.co.uk on Software"

What's Special 301? It's a report that examines the "adequacy and 
effectiveness of [intellectual property][9] rights" around the planet - 
effectively the list of countries that the US government considers 
enemies of capitalism. It often gets wheeled out as a form of trading 
pressure - often around pharmaceuticals and counterfeited goods - to try 
and force governments to change their behaviours.

  [9]: http://www.guardian.co.uk/technology/intellectual-property "More 
from guardian.co.uk on Intellectual property"

Now, even could argue that it's no surprise that the USTR - which is 
intended to encourage free market capitalism - wouldn't like free 
software, but really it's not quite so straightforward.

I know open source has a tendency to be linked to socialist ideals, but 
I also think it's an example of the free market in action. When 
companies can't compete with huge, crushing competitors, they route 
around it and find another way to reduce costs and compete. Most FOSS 
isn't state-owned: it just takes price elasticity to its logical 
conclusion and uses free as a stick to beat its competitors with (would 
you ever accuse Google, which gives its main product away for free, of 
being anti-capitalist?).

Still, in countries where the government has legislated the adoption of 
FOSS, the position makes some sense because it hurts businesses like 
Microsoft. But that's not the end of it.

No, the *really* interesting thing that Guadamuz found was that 
governments don't even need to pass legislation. Even a recommendation 
can be enough.

Example: last year the Indonesian government sent around a circular to 
all government departments and state-owned businesses, pushing them 
towards open source. This, says the IIPA, "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".

Nothing wrong with that, right? After all, the British government [has 
said it will boost the use of open source software][10].

  [10]: http://news.bbc.co.uk/2/hi/technology/7910110.stm

But the IIPA suggested that Indonesia deserves Special 301 status 
because encouraging (not forcing) such takeup "weakens the software 
industry" and "fails to build respect for intellectual property rights".

 From the recommendation:

 > "The Indonesian government's policy... 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.

Let's forget that the statement ignores the fact that there are plenty 
of businesses built on the OSS model (RedHat, Wordpress, Canonical for 
starters). But beyond that, it seems astonishing to me that anyone 
should imply that simply recommending open source products - products 
that can be more easily tailored without infringing licensing rules - 
"undermines" anything.

In fact, IP enforcement is often *even more strict* in the open source 
community, and those who infringe licenses or fail to give appropriate 
credit are often pilloried.

If you're looking at this agog, you should be. It's ludicrous.

But the IIPA and USTR have form here: [in recent years they have put 
Canada on the priority watchlist][11].

  [11]: http://www.michaelgeist.ca/content/view/3911/125/

-- 
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 25350955

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