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§ A recent blog posting at The Guardian about the US “Special 301” rules has generated deep concern around the global open source community. It points (via a blog posting by Edinburgh University law lecturer Andres Guadamuz) to this year’s recommendations from the controversially-named International Intellectual Property Alliance, which describes itself as “a private sector coalition… of trade associations representing U.S. copyright-based industries” – namely

“the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers’ Association (NMPA) and the Recording Industry Association of America (RIAA)”.

As well as representing a group of organisations with dreadful reputations for disregarding citizen liberty and victimising customers, the organisation’s activities involve engagement with WIPO, activity over TRIPS and ACTA and this “Special 301” review. That is certainly enough to make each of their statements subject to scrutiny. IIPA provides a vehicle that allows companies who are members of its member organisations – that’s a double-opaque arrangement – to exercise influence without accountability and with deniability.

Background

What is the “Special 301” list? TechDirt characterises it as

“a way for industry lobbyists to get the US gov’t to put countries they didn’t like on a special “watch list,” that would lead US diplomats, who didn’t even understand the lack of factual basis for the report, to start putting pressure on other countries to change their intellectual property policies to make them more draconian”.

It’s a relic of the cold war, ripe for revision at the very least. It is a Star Chamber, passing arbitrary judgment based on anonymous evidence delivered opaquely without authentication, challenge or appeal.

What is controversial about this particular report from IIPA? Finding out requires digging through a load of PDFs, but fortunately Andres has already done that. In particular, he discovered that the IIPA’s report on Indonesia contained this:

“While IIPA has no issue with one of the stated goals of [the Ministry of Administrative Reform (MenPAN) … Circular Letter No. 1 of 2009 issued on March 30, 2009, endorsing the use and adoption of open source software within government organizations], 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.” (my highlights of phrases discussed below)

Less detailed attacks on open source also appear in other country reports, such as India:

“The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin.  Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.”

The article by Ryan Paul expresses the same outrage that I share: “The number of ways in which the IIPA’s statements regarding open source software are egregiously misleading and dishonest are too numerous to count.”  Most notable is the implication that open source is in some way anti-commercial, an assertion Gartner flatly rejects. The opposite is true.

Analysis

Open source software is today a part of every commercial software solution, and IIPA’s assertion that expecting use of open source software “denies many legitimate companies access to the government market” is a desperate distortion of the truth requiring a suspension of belief in core suppliers like IBM, Oracle, Red Hat, Microsoft, HP – and most others. All have already integrated open source into their business in one of the ways Gartner describes.

To say it “undermines [the software market’s] long-term competitiveness” beggars belief, given the enormous competitive impetus the industry has received from the relaxation of lock-in and the introduction of new competitive innovation from open source. Far from being “a significant market access barrier”, an open source requirement corrects the power a small number of suppliers have been able to derive from lock-in and the exercise of monopoly – in some cases illegally and unremedied.

Further, IIPA’s position represents a direct attack on the very government to which it is making a recommendation. If expecting the presence of open source did indeed “simply weaken the software industry”, the US government itself would be culpable since the US Department of Defence has issued and clarified clear guidance preferring open source software for most purposes. By their logic, it would be justifiable for foreign governments to embargo the USA.

The greatest outrage arose from the assertion that “it fails to build respect for intellectual property rights”, which compresses into a few words both an inversion of the truth and a dishonest, self-serving conceptual framing. Open source software has no inherent impact on the use of trademarks, patents or trade secrets, so in this usage the controversial expression “intellectual property” actually refers only to copyright.

To say that open source fails to build respect for copyright is ridiculous. Open source licensing is copyright licensing and thus depends upon and promotes the greatest possible respect for copyright. Without that respect, open source software would be impossible. One suspects the comment is derived more from a desire to mislead government for commercial purposes by associating open source with file sharing in order to smear and discredit it from the worldview of the RIAA and its ilk.

Conclusion

The position taken by IIPA on open source is despicable, and the fact that the US Trade Representative is willing to act on it is a disgrace. It conflates outdated definitions, hidden proprietary vested interests and a fear of innovation and new business model opportunities. It blends them together to abuse an outdated mechanism of the US government with a condemnation not even the US itself could escape were it a candidate for listing. It devalues the American opinion in the global economic arena and casts a shadow on the democratic values that the nation represents.

It is time for community organisations like OSI to take the lead in speaking up for open source, and for national organisations, such as Open Source for America, to take action with their governments. This assault on decency has gone on for long enough.

[Also posted on my OSI Blog]

Filed under: Issues, Open Source | Tagged: BSA, FOSS, IIPA, Open Source, Special 301, Trade, USA |