Dangerous Intellectual Property Horizons

Yesterday the Guardian Tech Blog reported that the International Intellectual Property Alliance, an influential lobby made up of the Recording Industry of America (RIAA), and the Motion Picture Association of America (MPAA), as well as five other organizations,* has recommended that the US Government consider open source software (OSS) tantamount to piracy – and countries who encourage the use of OSS in their governmental departments be added to the Special 301 Watch-list.**

Where did all this come from?

Well, it seems that Indonesian, Brazilian and Indian governments encourage the use of OSS. How could this be bad? It makes a lot of sense to me. If I were running an emerging economy, I would use all the tools at my disposal to get the most bang for my buck – and free sounds like a lot of bang. It also sounds like the very purest definition of free-market capitalism – you are SO competitive, you are free. Perfect.

Well, the IIPA does not see things the same way I do. Scarily, they have the following thoughts about what governments who encourage the use of OSS do to Intellectual Property. In their words, it “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” and “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.” This is on page 52 of their 498 page, 2010 Special 301 Report, submitted to the U.S. Trade Representative on Feb. 18, 2010. You can find the full report here: USTR-2010-0003-0287.1

Now mind, these are not countries that have mandated the use of OSS in their various departments and state-owned enterprises – they have merely encouraged the use of OSS. And even if the use of OSS software was mandated as a cost saving measure (as well as a measure, as was given in Indonesia’s circular encouraging OSS use, to reduce software copyright violations), the recommendation of the IIPA that these three countries be put on the U.S. special watch-list because of what amounts to free-market capitalism is jaw-dropping. OSS seems to me to have grown out of a movement that upholds the ideals of copyright protections – protect original works and share the ideas that got you there. The argument made by the IIPA that encouraging the use of OSS “denies U.S. software companies a level playing field” is laughable when measured against competition law.

According to the World Intellectual Property Organisation copyright can be narrowly be defined as limited and legally sanctioned monopoly. Therefore the licensing of copyright requires consideration of competition law, known in the US as antitrust law. Competition issues may arise where the licensing party enjoys market power, if it seeks to include price maintenance schemes in licensing terms or uses the licensing agreement in a discriminatory manner. Copyright licensing that restraints trade may be subject to competition law.[65] (From Wikipedia–Copyright)

IIPA and trade organizations that want their intellectual property unhindered by the competition of open source software sounds like the very definition of a violation of antitrust laws. I hope, for the sake of international intellectual property law,  that the U.S. Trade Representatives are guffawing as loud as I am at the IIPA.

*From the Executive Summary of the Special 301 report: “The “Special 301” Report is an annual review of the global state of intellectual property rights (IPR) protection and enforcement, conducted by the Office of the United States Trade Representative (USTR) pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (enacted in 1994). The “Special 301” Report is an annual review of the global state of intellectual property rights(IPR) protection and enforcement, conducted by the Office of the United States Trade Representative (USTR) pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act(enacted in 1994).

**The five other organizations of the IIPA are: the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the National Music Publishers’ Association (NMPA)

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