FROM
http://www.technollama.co.uk/encouraging-open-source-could-land-you-in-trouble
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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.
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