Encouraging open source could land you in trouble

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.