Special 301 Report

Countries Placed on the ‘Trading Naughty List’ for Promoting Open Source


International Intellectual Property Alliance (IIPA) have just released their annual ‘Special 301′ report – this time blacklisting countries that promote open source software or prescribe its use in the government. Apparently, the IIPA have overlooked the fact that ww.whitehouse.gov uses the open source, PHP-based content management system, Drupal.

The Special 301 Recommendation List is submitted yearly to the
United States Trade Representative by IIPA, an umbrella group for
organisations including the Motion Picture Association of America
(MPAA) and Recording Industry Association of America (RIAA.) The
Special 301 List examines the effectiveness of intellectual
property rights, although guardian.co.uk refers to it as a list of
countries that the US government considers enemies of

Andres Guadamuz, law lecturer at the University
of Edinburgh summarises being placed on the Special 301 list as
“the equivalent of being placed in the trading naughty list.”

According to Digital Copyright Canada, several countries are
being included in the Special 301 watchlist because they have open
source-friendly policies.

Guadamuz has been through the reports for India, Brazil,
Vietnam, Philippines and Thailand, and concluded that “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.” He sees some justification in the IIPA’s
concern that institutions are being forced to use open source.
“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,” he argues. However, when it comes to
the Special 301 report on India, Guadamuz and the IIPA’s opinion
part ways.

The Special 301 paper reports that:

“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.” Special 301 paper.

Sending a letter advising the use of open source software, isn’t
the same as forcing institutions to use open source software.
Furthermore, the reasons reportedly given by this ‘Circular Letter
No.1 of 2009′ for adopting open source, are valid ones: that the
adoption of open source software will reduce overall software
costs, and reduce piracy. While the second is open to debate (does
open source directly reduce piracy?) the first seems like a

(Picture courtesy of http://tinyurl.com/y9xs9mo)

Guadamuz takes a very dim view of including this Circular Letter
as a reason for blacklisting India: “(the IIPA) equate promotion
and endorsement with anti-competitive practices that will stifle
market entry by proprietary software.” According to the Special 301
report, it is something more sinister than mere promotion, this
Circular Letter actually “weakens the software industry and
undermines its long-term competitiveness by creating an artificial
preference for companies offering open source software and related

There is still an undeniable leap between the Circular Letter
promoting open source software as a way of reducing costs and
piracy, and the IIPA’s conclusion that the Indonesia government are
forcing companies to adopt open source. Aren’t the government
merely expressing an opinion here?

But, the report isn’t finished yet. Apparently, open source
encourages “a mindset that does not give due consideration to the
value of intellectual creations” and “fails to build respect for
intellectual property.” Guardian.co.uk points out a flaw in the
IIPA’s stance that open source software is a so-called ‘enemy of
capitalism.’ “Would you ever accuse Google, which gives its main
product away for free, of being anti-capitalist?” it asks in an
online article entitled ‘When using open source makes you an enemy
of the state.’ Indeed, businesses like RedHat are built on open
source software, a fact not mentioned in the report.

The IIPA make a valid point in that a government passing
regulation in favour of open source software is unfair, and damages
the competitiveness of the IT market. However, if India being
blacklisted on the Special 301 is an indication of things to come,
then it seems that even recommending the use of open source
software could land governments in hot water with US Trade

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