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 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 refers to it as a list of countries that the US government considers enemies of capitalism.

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 no-brainer.

(Picture courtesy of

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 services.”

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.” 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 Representatives.

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