Posted by: commonsresource | March 1, 2010

“Jesters do oft prove prophets”

Notwithstanding my grogginess as I arrived for my swimming lesson this morning, I did notice that Lisa, at the fitness centre front desk, was wearing a jester-style hat.  And I also realized that I now knew how to write about something that has been troubling me for a few days.

Early last week, the Guardian Technology Blog reported that the International Intellectual Property Alliance (“IIPA”) has asked the US Trade Representative (“USTR”) to place Indonesia on its “Special 301 watchlist” because Indonesia has encouraged the use of open source software. Special 301 is a trade related measure that examines the adequacy and effectiveness of intellectual property rights in various countries and creates a priority watch list of countries (including my country Canada!) in which the USTR has identified serious issues.  As you might expect, this report (based on the underlying work by Andres Guadamuz, a lecturer in law at the University of Edinburgh) has caused quite a firestorm in the OSS community.

Having some familiarity with the very important work of the IIPA in the intellectual property (“IP”) protection arena, my initial reaction was that the attributed statement must either be a serious misunderstanding or a statement in jest. Having digested the second excerpt identified by Andre (as set out below), there does not appear to be a misunderstanding:

“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.”

Instead, I now believe that the IIPA is advancing a rather nuanced argument around the importance of giving “due consideration to the value of intellectual creation”.  As discussed in my “The double-edged sword of enforcement” post, commercial software and OSS are both built on an IP foundation and a shared respect for licensing choices.  To the extent to which a country, company, community, or individual has embraced IP piracy as an option,  it can be argued that a lateral transition to OSS might allow that entity to simply continue its practice of not paying without embracing the culture of IP and licensing respect that the commercial and open source software worlds require.  As such, there is a practical risk that such an entity may place “blinders” on its software options and practices to the detriment of valid commercial software alternatives and the community contribution norms of the OSS community. As such, the entity may end up blindly pursuing “free” at a great cost to itself (by narrowing its options) and commercial software companies (by not including them in the software option analysis) and the OSS world (by not playing the contribution back licensing rules) without creating the conditions of IP and licensing respect that commercial and open source software need to thrive.

In closing, if the nuanced IIPA report on OSS in Indonesia (that should best be clarified by the IIPA with the OSS community) is even somewhat in jest , I am reminded of the quote from Shakespeare that “Jesters do oft prove prophets”. And I do want to thank Lisa for the inspiration of her hat!


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