Use open source? Then you're a pirate!


There's a fantastic little story in the Guardian today that says a US lobby group is trying to get the US government to consider open source as the equivalent to piracy.

The International Intellectual Property Alliance (IIPA), an umbrella group for American publishing, software, film, television and music associations, has asked with the US Trade Representative (USTR) to consider countries like Indonesia, Brazil and India for its "Special 301 watchlist" because they encourage the use of open source software.

A Special 301, according to Guardian's Bobbie Johnson is: "a report that examines the 'adequacy and effectiveness of intellectual property 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."

So in effect, the annual Special 301 report names and shames countries that the USTR believes do not do enough to protect US copyright, patents and trademark laws abroad.

Further reading:

Early Day Motion Calling for ACTA Transparency

The Great ACTA Lie Revealed

It is easy to see how pirated software can, in the eyes of USTR, hurt companies like Microsoft. The IIPA claimed that business software producers last year lost $126 million to pirates in the Philippines.

However, equating free software to piracy is just a little bizarre. As Johnson rightly points out, no one could argue that Google, which gives away many of its products free is anti-capitalist.

The IIPA has demonised Indonesia precisely because, according to IIPA, the government is encouraging (not forcing) open source take up that "weakens the software industry" and "fails to build respect for intellectual property rights".

This seems absurd and works against the interests of the USTR. In fact, encouraging free software could reduce software copyright infringement and piracy amongst poorer countries.

The really interesting thing is that governments don't need to legislate, but only be considering, the use of open source to be put on the Special 301 watchlist. The Indonesian government, last year, sent around a circular to all government departments and state-owned businesses, pushing them towards open source. Now the IIPA has said it should be on the watchlist.

By this token the British Government should be on the list, because it has also pledged to encourage the use of open source (although whether this promise goes beyond politicking is a matter of conjecture).

Organisations are able to submit comments to the USTR (the deadline for submissions this year has already passed - it was 18 February). Free Software Foundation is one such organisation that has criticised the process. You can read the comments it submitted this year here, but here is a highlight:

"Since the DMCA was passed in 1998, foreign governments have been under increasing political pressure to enact similar legislation. Much of that pressure comes from the United States Trade Representative. This issue was a highlight of the 2009 Special 301 Report: failure to implement the WIPO Internet Treaties were cited as a source for concern in ten separate reports for countries on the Priority Watch List or Watch List. Obligations to implement anti-circumvention legislation have featured in at least eight bilateral Free Trade Agreements that the U.S. has entered since then. The USTR also sought to include such obligations in the proposed multilateral Free Trade Area of the Americas agreement, and though little official information is available, various reports suggest that the Anti-Counterfeiting Trade Agreement currently includes similar provisions."

"All this happens despite the fact that such laws hurt the development of free software, and have negative impacts on trade throughout several industries. The effects are serious enough that the DMCA remains controversial more than a decade after it came into effect, and implementations of the EUCD face similar opposition. The USTR has a responsibility to promote trade in a manner consistent with the democratic principles our country was founded upon, and advocating for anti-circumvention legislation abroad does not meet that criteria. The USTR should cease using such laws as a negotiating stick in the Special 301 Report."

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