RIAA and MPAA say: Open Source = Piracy

February 25, 2010 11:25 AM

The International Intellectual Property Alliance, an umbrella group for organisations including the MPAA and RIAA, has requested with the US Trade Representative to consider countries like Indonesia, Brazil and India for its “Special 301 watchlist” because they use open source software. (also here)

The US Trade Representative publishes every year the Special 301 report, an annual review of the global state of intellectual property rights (IPR) protection and enforcement, and “reflects the Administration’s resolve to encourage and maintain effective IPR protection and enforcement worldwide.”

Last year, the special 301 report mentioned Canada in the Priority Watch List for the failure of Canadian industrials to support the implementation of TPM. This year, it is the IIPA's turn to push for their political agenda, this time with a more controversial target.

posted by knz (61 comments total)

They're really out of ideas, aren't they.
posted by Joe Beese at 11:34 AM on February 25, 2010 [2 favorites]

Help! Help! Free-market capitalism is threatening our state-sanctioned monopoly!!
posted by mek at 11:41 AM on February 25, 2010 [25 favorites]

I'm waiting for them to try to declare the Creative Commons licensing as 'anti-competitive'.

At that point, I can finally give in to my pyrotic urges.
posted by mephron at 11:51 AM on February 25, 2010 [1 favorite]

Given that their marginal costs per sale are so close to zero, using a competing product is financially equivalent to stealing their product. So naturally using other products should be sanctioned just like stealing is.
posted by idiopath at 11:55 AM on February 25, 2010 [7 favorites]

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.

Oh, they gave you due consideration.
Mene mene tekel upharsin.
posted by charred husk at 12:02 PM on February 25, 2010 [9 favorites]

In other news, open source developers have re-affirmed MPAA's and RIAA's place on their list of organizations that Just Don't Get It.
posted by ZenMasterThis at 12:10 PM on February 25, 2010

This dinosaur's on the way out... but watch for that swinging taill.
posted by klanawa at 12:12 PM on February 25, 2010 [1 favorite]

... 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.

So the MPAA, RIAA, MS, et al (champions of free market capitalism, y'know) are going to give up all their Washington lobbyists so as not to create an artificial preference for companies offering for-fee closed-source software and services?
posted by ZenMasterThis at 12:19 PM on February 25, 2010 [4 favorites]

even as teh world shifts around them, the status quo will never give up - all hail custer
posted by infini at 12:28 PM on February 25, 2010

I'm not the end of the article yet but could someone please tell me what the hell a chick in a bikini on an Indonesian beach has to do with IP?
posted by spicynuts at 12:37 PM on February 25, 2010 [1 favorite]

MINE!
posted by craven_morhead at 12:38 PM on February 25, 2010

FYI: TPM refers to Technical Protection Measures not Trusted Platform Module.
posted by Pollomacho at 12:38 PM on February 25, 2010 [1 favorite]

... 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.

Yes. Crappy quality control, poor design, feature bloat and unrealistic deadlines do all these things and more.
posted by Kid Charlemagne at 12:57 PM on February 25, 2010 [1 favorite]

The IIPA is representing the interests (AKA profit) of its members. In an ideal capitalist society, they are incented to make those profits through adding value to society via its products in services. Unfortunately, copyright is not very capitalist, so they their interests no longer seem to intersect with the interests of society much; they are not longer incented to create new works for profit, enriching both us and them, but are instead incented to maximize the profit of previous works, enriching only them.

Does anyone actually care what it thinks?
posted by Bovine Love at 1:02 PM on February 25, 2010 [1 favorite]

Industry lobby group lobbies for industry.
posted by rocket88 at 1:11 PM on February 25, 2010 [1 favorite]

Does anyone actually care what it thinks?

Apparently the US Trade Representative does, and that is what matters.
posted by charred husk at 1:14 PM on February 25, 2010 [3 favorites]

The IIPA has made a submission to the trade representative. I expect you could too, if you want to. It doesn't they are listening.
posted by Bovine Love at 1:34 PM on February 25, 2010

ZenMasterThis: In other news, open source developers have re-affirmed MPAA's and RIAA's place on their list of organizations that Just Don't Get It.

If only someone could teach them to keep it copacetic. Me, I've just learned to accept it... I know, I know, it's so pathetic.
posted by Riki tiki at 1:35 PM on February 25, 2010 [4 favorites]

I read the article preparing to be outraged, but just couldn't muster it. I think you're overselling this by saying the claim is that Open Source is the same as Piracy. The quote used in the article essentially takes the position that governments should not dismiss non-free software out-of-hand just because there is an open source alternative.

When making any sizable purchase, you need to factor in the total cost of ownership, including implementation and support. Just because something is free up-front does not necessarily mean that it will be as easy to roll out and support. I make use of FOSS every day, but there are still times then a commercial product is going to do the job better.
posted by mach at 1:39 PM on February 25, 2010 [1 favorite]

The IIPA has made a submission to the trade representative.

A fair point. It isn't encouraging that they have been listened to in the past (the Canada listing, for example), but it isn't a done deal yet. But then again, we're looking for it this time.

Contact info for the USTR is here. I can't find info on how to make a submission, but it is a start.
posted by charred husk at 1:42 PM on February 25, 2010

mach: I'm sorry, are we reading the same article?

"[...] has requested with the US Trade Representative to consider countries like Indonesia, Brazil and India for its "Special 301 watchlist.

"What's Special 301? It's 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."
posted by lupus_yonderboy at 1:49 PM on February 25, 2010 [3 favorites]

Its helpful to understand that when 'Capitalism' is used as a rallying point it doesn't really mean 'Capitalism' anymore than 'Socialism' actually means 'Socialism.'

'Socialism' = that which does not benefit me personally and, thus, I hate.

'Capitalism' = that which benefits me directly and, thus, I love.

If you use these revised definitions, USAmerica makes more sense.
posted by Joey Michaels at 2:05 PM on February 25, 2010 [6 favorites]

Joe Beese: "They're really out of ideas, aren't they."

They should somehow get some copyright on that.
posted by symbioid at 2:08 PM on February 25, 2010 [1 favorite]

mach: "When making any sizable purchase, you need to factor in the total cost of ownership"

This has nothing to do with declaring a country an enemy of capitalism if they actively encourage the use of open source software.
posted by idiopath at 2:10 PM on February 25, 2010 [3 favorites]

lupus_yonderboy, look I admit I'm not particularly familiar with the "Special 301 watchlist". Perhaps it really is more ominous than I'm perceiving it.

However, even if this recommendation were adopted (which it probably won't), the worst that would happen is these countries may agree to change the wording in their software policies. The people getting up in arms about this are proposing that we would prevent other governments from using open source software, which is ludicrous.
posted by mach at 2:13 PM on February 25, 2010

Of course, creating artificial preference for free stuff has historically been fraught with difficulty. They're obviously doing something to push people toward them.
posted by flippant at 2:28 PM on February 25, 2010 [1 favorite]

I suspect the real issue here is the concern that people who are used to getting purely digital content "for free" will not hesitate to do so even when the bits in question aren't being offered that way.

Of course, that horse left the barn a long time ago...
posted by Slothrup at 2:37 PM on February 25, 2010

mach: The original problem was that places like Indonesia were heavily pirating Windows software, so we leaned on them very heavily to stop doing that. So they issued statements that all software used in government should be legally licensed, and that government entities without purchase budgets should consider Open Source software.

Well, of course, this just horrifies the people who sell high-priced software, so now they're trying to get our government to denounce these countries as 'not respecting copyright laws', when they're explicitly trying to do so. Our software lobby is asking for the use of free software to be declared as being functionally the same as stealing THEIR software. Their reasoning: it'll be hard for them to sell Windows software to people running Linux, and that's anti-free-market. Seriously. They're actually arguing that.

Of course, our own government, including the Department of Defense, has issued statements that are exactly similar, that subsidiary agencies are allowed to consider the use of open source software wherever appropriate.

If we do throw these countries on the 301 list for failing to pay more for software than they're legally required to under any jurisdiction, anywhere, it's completely two-faced and disingenuous. The countries are being punished for failing to buy our software, not for failing to respect copyright.
posted by Malor at 2:40 PM on February 25, 2010 [15 favorites]

mach:

I guess you're coming to this with a specific axe to grind but again, I see nothing at all in the story itself that backs up your reading.

The story is: "industry group wants some countries that use open source to be put on a list of countries that are intellectual property thieves."

The massive dishonesty of this stance wouldn't be changed by a bunch of statements about "total cost of ownership" and crap like that, even if those statements weren't in fact massive lies from beginning to end.

And let's be realistic. This is 2010. If you were starting a server project of any size and were using Windows servers (and there wasn't overwhelming technical or business reason to do so), I'd seriously question your professional judgement. Nothing against proprietary software, heck, that's how I make my living! but why condemn yourself to paying licensing fees for eternity for software that you have no chance of fixing if it breaks?

Linux is small, fast, reliable, free free free and if I don't like how it works, I can fix it or find someone who understands it and pay them to fix it.

And that goes triply if I were using the public's money!

The reason Microsoft (because they're the ones behind this - what other big company isn't mostly open source these days?) is doing this is because they know they can't compete fairly in a head-to-head. If their software were really better than the free alternative, surely they'd win every time since they have professional salesmen to make their case for them and the free software case simply has to go by its own merits, yes?
posted by lupus_yonderboy at 2:47 PM on February 25, 2010 [2 favorites]

Malor: thanks for the summary. However, from the article, I was not able to draw the conclusion: "Our software lobby is asking for the use of free software to be declared as being functionally the same as stealing THEIR software.". I'm sure there could be more context of which I'm not aware. It also seems that the language being used regarding the Special 301 watchlist evokes a bit of "Death Panel" hyperbole for me. Note as well I was not coming out in favor of the government forcing other countries to change their software policies. Just that in this particular instance I thought the speech surrounding this issue was going over the top.

and lupus, no axe to grind here. No problem with governments using Linux over Microsoft, or making use of any other open software they see fit to use.
posted by mach at 3:09 PM on February 25, 2010

The reason Microsoft (because they're the ones behind this - what other big company isn't mostly open source these days?)

So, the BSA is one of the seven members of the IIPA, and Microsoft is one of 35 members of the BSA and it's someone else who's got an axe to grind?
posted by Slothrup at 3:33 PM on February 25, 2010

mach: for more background, check out the Ars Technica writeup. One good bit:

In its 301 recommendations for Indonesia, the IIPA demands that the government rescind its 2009 statement. According to the IIPA, Indonesia's policy "weakens the software industry and undermines its long-term competitiveness" because open source software "encourages a mindset that does not give due consideration to the value to intellectual creations [and] fails to build respect for intellectual property rights."

Ars itself references this blog entry by Andres Gudamuz, which appears to be as close to a primary source as anything I've found so far.

His summary:

So, reducing costs and piracy translates into denying companies access to the market and affects innovation. Read here, Microsoft and others will have to compete with Open Office. I am baffled by the mindset that believes encouraging public institutions to use legitimate and free open source software solutions “does not give due consideration to the value to intellectual creations”. Chew on that phrase for a moment. Open source software has no value because it is free, so anything that encourages open source has the opposite effect, namely, it “fails to build respect for intellectual property rights”.

In other words, if you're using free software, you're getting used to the idea of using free software, and we can't have that.
posted by Malor at 3:50 PM on February 25, 2010 [1 favorite]

So, my original summary was a little off.... they're not directly arguing that it's hard to sell Windows software into Linux markets, they're arguing that it's hard to sell software at all into Linux markets, and trying to spin that as "lack of respect for intellectual property".

But, as Ars points out, there's lots of open source vendors doing exactly that, selling free software, and there's a whole class of inexpensive consumer electronics that are dependent on the Free Software infrastructure to exist at all. There's robust competition in that area, and in my own opinion, that's probably the healthiest software market going.
posted by Malor at 4:02 PM on February 25, 2010

This dinosaur's on the way out... but watch for that swinging taill.


Reminds me more of a really old, half-blind, half-senile dog who used to be vicious back in the day, but now he's being led into the back room at the Vet's to be put down. He's docile enough, and he's following you back there cause you have a treat to offer, but every now and then as he lumbers through the waiting room, he turns and takes a big bite out of one of the smaller, younger dogs just waiting to be fixed.
posted by mannequito at 4:27 PM on February 25, 2010

Microsoft has been banging on this drum for a while now. From 2002 (via a friend): A classic response of a Peruvian Legislator to the head of Microsoft's Peru office.
posted by idiopath at 4:42 PM on February 25, 2010 [1 favorite]

open source developers have re-affirmed MPAA's and RIAA's place on their list of organizations that Just Don't Get It.

Get what? That everything digital is somehow cost free?

False equivalence here, not quite a matter of the latter orgs Just Not Getting It.

Here's the difference. Mr Open Source makes the product and gives it away for free. He doesn't have to, but he's an old hippy type and he does. No problem.

Mr Music Man or Mr Hollywood or Mr Publisher creates a product and offers it for sale at a price. You can take or leave or make a counter offer. If you make a counter offer, Mr Music Man or Mr Hollywood or Mr Publisher can take it or leave it. Also no problem.

What you cannot do (legally), and what you must not do (morally), is to decide that you don't like the deals offered, but are somehow above the give and take of the market place. You are special and can unilaterally define the deal you like, which seems always to be - something for nothing.

Nothing new under the sun.

(And don't give me that "I wouldn't have bought it under any circs so taking it is okay". Time is money and if you're devoting your time to the product, you can devote a little geld to the creator.)
posted by IndigoJones at 5:24 PM on February 25, 2010

What you cannot do (legally), and what you must not do (morally), is to decide that you don't like the deals offered, but are somehow above the give and take of the market place.

The whole deal, with Indonesia, as outlined above, is that it attempted to combat widespread use of not-paid-for software by replacing it with not-having-to-pay-for software. Windows was too expensive for them, and rather than continuing to pirate Windows, they made moves to switch to Open Source. This is what the industry group is pissed off about, revealing their concern is purely over profits, not intellectual property.
posted by Jimbob at 5:35 PM on February 25, 2010 [2 favorites]

IndigoJones, what is the relevance of your tired gripe to this FPP?
posted by kaspen at 6:53 PM on February 25, 2010

AND they're trying to slam those countries with an anti-intellectual-property bat, when in fact those countries are now attempting to adhere precisely to both the letter and the spirit of the law. They're IMPROVING their treatment of intellectual property, but the BSAA et al are trying to put them back into the 'pirate nation' class, simply because they choose to use software that has no required purchase cost.
posted by Malor at 6:58 PM on February 25, 2010 [1 favorite]

on failure-to-preview: kaspen: Nothing that I can see. He just wanted to use "hippy" in a sentence.
posted by Malor at 7:00 PM on February 25, 2010 [1 favorite]

You are special and can unilaterally define the deal you like....

Sort of like the way every EULA makes me both licensee and purchaser but neither depending on which makes the people selling me some piece of crap not responsible for said piece of crap's failure to perform as advertised.
posted by Kid Charlemagne at 7:59 PM on February 25, 2010 [1 favorite]

This is copyright law being extended to the silly. It actually hurts rights holders by diluting the importance of the underlying rights. So sad.
posted by caddis at 8:08 PM on February 25, 2010 [1 favorite]

Get what? That everything digital is somehow cost free?

Not at all.

Their argument made to the US Trade Rep suggests that they don't get the difference between works that are offered more or less freely (albeit with the open source quid pro quo) and copyright violation. In this they apparently join the ranks of the people you're addressing in your comment.

However, I suspect the reality is that this is a red herring. The reason their lobbying seemingly doesn't reflect a better understanding is that they've decided this particular misunderstanding is a better ostensible cover than their actual objections to open source: open source systems are harder to lock down. Propietary systems are much easier to lock down, all you have to do is negotiate with the owner.

They do get it. Open systems are an enemy if they want control. They not only want it, they're used to it, and think of it as their privilege more surely than the most media "pirates" thinks of unfettered duplication and distribution as theirs. And they're willing to not only lobby but to attempt to deceive the US Trade Rep, among others, to get it. Not to mention abuse the courts and the lives of a myriad of defendants, guilty or not.

You can take or leave or make a counter offer. If you make a counter offer

Counter offers are pretty darn hard to come by under the current system. I think it's mostly take or leave, with, for some uses, a heft helping of "no from the get-go," plus whatever windows exist for unauthorized use.
posted by weston at 8:28 PM on February 25, 2010 [1 favorite]

FOSS community failing to read up primary sources and hyperventilating over headlines: news at eleven.

Malor: Ars itself references this blog entry by Andres Gudamuz, which appears to be as close to a primary source as anything I've found so far.

You could have found something closer, because there's in fact an actual primary source linked to in Guderuz' blog: the IIPA's recommendation itself. What's the IIPA's problem with Indonesia's FOSS policy? Well, that Indonesia's government is set to "recommend" use of FOSS over proprietary software. The IIPA's worried that such a "recommendation" may in fact be rather compulsory and used to discriminate against proprietary (read: foreign) software providers. The IIPA has a rather unfortunate turn of phrase when it says that the policy "encourages a mindset that does not give due consideration to the value to intellectual creations", but the concern is about market barriers.

It is a warranted concern, mind you. According to Guderuz, the IIPA's recommendations on Brazil, India, Philippines, Vietnam and Thailand point to compulsory procurement rules in those countries forcing public entities to choose FOSS over proprietary software regardless of performance or cost. This is, quite frankly, thinly disguised protectionism, and Guderuz himself seems to agree:

"I have to admit that I somewhat share the IIPA’s concerns in this regard. I have never believed in open source procurement legislation, I think that forcing institutions to use a specific technical solution is wrong. 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. Open source should not be imposed, it should win on its own merits."

Mind you, FOSS procurement preference or even compulsory FOSS procurement isn't, for any of those countries, the IIPA's major concern. It won't come as a surprise to anybody who has had to dealt with any of those countries that intellectual property protection there is, at the very least, spotty (and by "spotty" IP enforcement, I don't mean merely turning a blind eye to P2P file-"sharers", but actively condoning a lively market in counterfeit goods).
posted by Skeptic at 1:49 AM on February 26, 2010

so the pirate party is merging wiht the cocktail party? ;p
posted by infini at 2:05 AM on February 26, 2010

Skeptic: It's an "unfortunate turn of phrase" because they have no other way to tie the 301 mechanism, which is about copyright infringement, into what's actually happening, which is countries deciding not to use our copyrighted products, but using a perfectly legal (and ethical) method to do so.

The 301 process is to punish governments that counterfeit and infringe copyright/trademark/patent law. These countries are explicitly turning away from doing so, by embracing Free Software. Our continuing to use the 301 process as a bludgeon to try to stop this shows where the priorities really are. It has nothing to do with IP, and everything about getting them to pay up, even if they don't need to.

There are very good reasons to prefer Free Software in government, above and beyond the (lack of) purchase price. If you control the code, you can't end up with your government data locked in formats that you don't control. Maintaining data is a core competency of governments, and using only freely-available code to massage that data means they can't be held hostage by entities with more control over the code than they have.

They can rent their code, or they can own it, and true ownership is a compelling argument for any sane government.
posted by Malor at 5:57 AM on February 26, 2010

Even more importantly, it means the government can interact with its citizens (and other branches of government) with those documents without requiring the citizens to buy a proprietary bit of code. Of course, truly open document standards achieve this alone, but so far the adoption by companies like MS has been mediocre to poor. And, of course, they have frequently tried to sabotage the process (whether the sabotage is intentional, or they just aggressively believe their schemes are better, is open to debate as facts are thin). I'd like to see a "government" edition of Word, which can open many formats but only save an open document format.
posted by Bovine Love at 7:01 AM on February 26, 2010

Malor, if there are good reasons to prefer FOSS over proprietary code in public procurement (and, as a matter of fact, I have no doubt that there are), they should be considered directly and transparently in the procurement process (which is what Gudamuz himself proposes, and I don't find absolutely anything to argue against that).

What's simply wrong is to favour FOSS for FOSS's sake, and to discriminate competitors or even exclude them altogether just because they don't conform to that particular IP model (because I'm also quite aware that the FOSS model is also quite deeply grounded in intellectual property law).

Such provisions have always a strong protectionistic whiff, and I have no doubt whatsoever that outright Americanophobia is one of the main reasons why FOSS-only policies are popular among a certain set of politician abroad - and I say this as a non-American myself. (Of course, right now it would be quite rich of the US to complain about protectionism in public procurement, that with those "Buy American" policies and stuff...)

And yes, that sentence is a rather pathetic attempt to tie in what's essentially a free trade complaint into the Super 301 provisions (which are, BTW, about all IP enforcement, not just copyright infringement). Still, it has a point in that those policies are attempting to dictate software developers how they should enforce (or rather, how they should not enforce) their IP rights if they want to have a shot at those markets. But nowhere, absolutely nowhere in that recommendation I read what's then been alleged in this thread, or elsewhere in the FOSS blogosphere by rather hysterical commenters, namely that the IIPA is equating FOSS to piracy.
posted by Skeptic at 7:03 AM on February 26, 2010

IndigoJones, what is the relevance of your tired gripe to this FPP?

I'm a fogey. I like straight lines. I saw someone apparantly smudging the line between what is offered for free and what is not offered for free. It irritated me. And tired I my gripe may be, but it ain't wrong.

So sue me.

Counter offers are pretty darn hard to come by under the current system. I think it's mostly take or leave, with, for some uses, a heft helping of "no from the get-go," plus whatever windows exist for unauthorized use.

Tant pis, then. It is ridiculous to assume that you can have everything you want in life. Esp. without tossing a little something back into the pot. And let's be real. You want free use of just about any digital product, it can be had, worst case scenario, via library (which paid for it). But to try to insist that one is not ripping someone else off, that one is morally pure is specious, sophistic, and self-serving. (And I suspect, given that the general reaction is anger rather than bewilderment, folks pretty know this on some level at least.)

Carry on, I'm going to take my nap now.
posted by IndigoJones at 7:53 AM on February 26, 2010

Skeptic: see the letter from the Peruvian congressman I linked above. In Peru they actually made free software mandatory - this is not protectionist because any company is free to sell them their own free software solution (which can include a purchase price, an installation price, and / or a service fee - we are talking free as in libre here).

To cite a preference or even a mandate for free software is not protectionist - in the Peruvian case it was actually the only way for the government there to comply with existing laws regarding openness and security of public data.
posted by idiopath at 8:45 AM on February 26, 2010

But nowhere, absolutely nowhere in that recommendation I read what's then been alleged in this thread, or elsewhere in the FOSS blogosphere by rather hysterical commenters, namely that the IIPA is equating FOSS to piracy.

Did you miss that they're using an anti-piracy mechanism to try to shut down the use of Free Software?

The argument is fundamental in even trying to use this process.
posted by Malor at 9:05 AM on February 26, 2010

Did you miss that they're using an anti-piracy mechanism to try to shut down the use of Free Software?

Did you miss that they are doing nothing of the sort? They are complaining (among many other things) that some countries mandate or strongly suggest procuring only FOSS. They aren't trying to "shut up" the use of FOSS, they just want to be allowed to compete against it on equal terms.

Also, Super 301 isn't just an "anti-piracy" mechanism. It's a mechanism for demanding a level of IP enforcement. There's no question that shutting out of public procurement those who prefer to legally keep their code closed, even when this isn't directly justified, is a serious handicap on a perfectly respectable and legal form of IP enforcement.
posted by Skeptic at 9:30 AM on February 26, 2010

There's no question that shutting out of public procurement those who prefer to legally keep their code closed, even when this isn't directly justified, is a serious handicap on a perfectly respectable and legal form of IP enforcement.

I can't make head nor tails of that statement. How does shutting out closed code handicap IP enforcement? I can totally see a free trade argument being made, but I cannot see for the life of me how mandating OSS would make IP enforcement more difficult.

Also, for the record, open source code is most certainly copyrighted, and the copyright is pursued in some cases.
posted by Bovine Love at 9:36 AM on February 26, 2010

this is not protectionist because any company is free to sell them their own free software solution

The fact that the main company which offers a proprietary solution is a well-known Yanqui company is completely coincidental, I'm sure. This is as un-protectionistic as allowing any soft drink, as long as it isn't brown and fizzy.

The congressman makes many points which are very worthy. As I said, I agree that FOSS presents a number of clear advantages for public procurement, mainly those cited by the congressman of data safety, privacy and permanence. However, it isn't so that those advantages are overwhelming or even necessary for all software which the public sector will have to buy. To mandate FOSS over the board seems overkill, and could lead to difficult situations: does this mean that the embedded software in all machinery sold to the Peruvian government - cars, planes, cranes, etc. - has to be FOSS as well?
posted by Skeptic at 9:48 AM on February 26, 2010

I cannot see for the life of me how mandating OSS would make IP enforcement more difficult.

Easy. You write some code. You can then choose how to enforce your intellectual property. Some may choose to keep the source code closed and charge for licencing the use of the compiled code (proprietary software), and others may choose to open the source code, and not charging for the use of the software itself, but eventually for support, maintenance and all sorts of ancilliary services (FOSS).

Now, both options are perfectly legitimate ways of protecting and exploiting your intellectual effort. Depending on your sector, activity and business activity, one or the other may make more sense. Now comes the lawmaker and decides that, if you choose the first path, you are excluded in all cases from public procurement (and the public sector can be between one-fifth and one-half the total economy). Bummer. If you've chosen the first path, you are basically fucked. And the second path isn't necessarily the easiest way of enforcing your IP.
posted by Skeptic at 9:58 AM on February 26, 2010

the IIPA's recommendations on Brazil, India, Philippines, Vietnam and Thailand point to compulsory procurement rules in those countries forcing public entities to choose FOSS over proprietary software regardless of performance or cost. This is, quite frankly, thinly disguised protectionism

There may be some political reason on top of practical reasons of some kind for those mandates, but invoking the term protectionism makes zero sense in any normal sense of the term. FOSS isn't a localized industry, and as idiopath points out, foreign companies would be quite free to market a foreign FOSS solution under such a rule. This is a completely orthogonal concern to free trade.

What's simply wrong is to favour FOSS for FOSS's sake

FOSS as a class of software has enough compelling advantages from the get go (no vendor dependency, generally more cost effective outside of specialized niches) that it seems unlikely less compelling reasons ("for FOSS's sake", "Americanophobia") are really in play.
posted by weston at 10:01 AM on February 26, 2010

Oh come on, Skeptic, that is a complete non-sequitor. You are really really reaching there. "We demand software be delivered on CD-ROM". Since CD-ROMS are easy to copy, IP protection is weakened. You could make that reasoning for for anything. "We demand that software we buy works on Windows XP!" Oh, well, that is anti-IP, because XP doesn't have the same protections as Vista, so you are hurting the enforcement of IP. "We demand a GUI!" Well, GUI's don't really get much IP protection (look and feel suits have had limited success), so demanding a GUI means someone can somewhat copy it, and we loose IP protection. By your reasoning, all companies should be able to demand inspection of all others code (possibly by a 3rd party) at will,, because that would make IP enforcement easier, and anything that doesn't make it easy means you are weakening IP enforcement.
posted by Bovine Love at 10:15 AM on February 26, 2010

The fact that the main company which offers a proprietary solution is a well-known Yanqui company is completely coincidental, I'm sure.

I made this point more succinctly in my earlier comment, but to elaborate: at least in the abstract sense discussed here thus far, the advantages of generally free licensing, frequently competitive TCO, and vendor independence do make nationality of the supplier seem coincidental by comparison. Cost issues are important to everyone, particularly right now, and it's not hard to imagine that vendor independence might be an even higher priority for any entity that considers itself sovereign than it would for most. In fact, if there's any basis whatsoever to the nationalist narrative you were incorrectly trying to place under the term "protectionist," I suspect it's a distortion of this motive.

The fact is you could walk into most organizations that use computers for the usual office work (file management, word processing, spreadsheets, email, web browsing) and replace software licenses that are on the order of $1000 a head with software that has no license cost today. Any disruptive costs incurred towards TCO are likely to be on the order of the costs of a new license and after that you're very likely TCO competitive with no further license costs.

If we're looking for shadows against the darkness to explain what's going on in the world, I'd say the mystery of why more organizations haven't done this is a bigger one than why some foreign governments might be interested. And some of the answers (from inertia to graft) go a lot farther towards explaining what might motivate an executive encouragement or even mandate than the story of any organization abandoning an otherwise satisfactory software arrangement because of a vague "Americanophobia."
posted by weston at 10:29 AM on February 26, 2010

"We demand software be delivered on CD-ROM". Since CD-ROMS are easy to copy, IP protection is weakened.

Well, if there's no other apparent reason in that particular case, for that particular contract, for the software to be delivered on CD-ROM, I'd certainly smell something rotten.

By your reasoning, all companies should be able to demand inspection of all others code

Actually, in cases of suspected IP infringement, in many countries there are legal mechanisms to do exactly that.

FOSS as a class of software has enough compelling advantages from the get go (no vendor dependency, generally more cost effective outside of specialized niches) that it seems unlikely less compelling reasons ("for FOSS's sake", "Americanophobia") are really in play.

If the advantages are so compelling, isn't it superfluous to make it mandatory, unless just for those less compelling reasons? I have seen and heard politicians argue just those less compelling reasons quite candidly...

Nobody has answered my question, BTW. In case of mandatory FOSS in public procurement, why shouldn't this extend to the embedded software in all the machinery that governments buy? (Hint: I'm pretty sure that the weapons manufacturers that sell to Peru aren't freeing the software embedded in those tanks and fighters).
posted by Skeptic at 10:33 AM on February 26, 2010

What clouds this issue is the dishonesty of the so-called "International Intellectual Property Alliance."

"International?" They represent the interests of US companies and US-based industries. There is nothing international about them.

"Intellectual Property?" They don't care about intellectual property. They only care about protecting the monopoly of the industries they represent. It's funny that the IIPA should use the words thinly disguised protectionism. The IIPA's raison d'être is government-backed, government-enforced protectionism.

"Alliance?" They are a trade association / lobbying group of trade associations / lobbying groups that represent American corporate interests.

If they had a modicum of honesty, they'd call themselves the American Corporate Monopoly Protection Lobby.

Let's look at it this way:

If Indonesia, Brazil, India, Philippines, Vietnam and Thailand mandated that all government software must be Microsoft and/or Adobe, would the IIPA have had an issue with this?

Of course not.
posted by stringbean at 10:40 AM on February 26, 2010 [1 favorite]

If the advantages are so compelling, isn't it superfluous to make it mandatory

To add to the answer I gave to that question at the end of my last comment: You might as well ask why compelling changes don't just spontaneously happen in most large organizations. Executive mandates or guidelines of any kind should just generally be unnecessary, right?

As a specific example, right now I'm watching a fun internal battle in a company I'm contracting for. The company doesn't want to upgrade from Win2k because of the license costs (they're a print company, so they're naturally bleeding). So if they're staying the closed-source course, that means IE6, and the head of IT is adamant about the status quo. However, the company's future is also dependent on two (if not more) web apps, and the ability to repeatedly deploy a variety of web designs consistently across supported browsers, to which IE 6 has added and continues to add significant ongoing development costs. Firefox has no licensing costs and it looks likely that the TCO bump involved in IT would be less than the additional development costs of supporting IE 6 (for an increasingly shrinking audience that now consists nearly all of internal visitors). But the burden of change and expenditure of effort would then fall on IT, and it's still an open question who management is going to listen to.

This isn't the only way organizations resist even net positive changes, but it's one good example.

In case of mandatory FOSS in public procurement, why shouldn't this extend to the embedded software in all the machinery that governments buy?

Perhaps not a code-styled license, but I suspect that if they were thinking beyond the cost and independence of their information technology infrastructure, they'd see the logic applies there as well. Certainly U.S. citizens are coming to realize it's a problem domestically.

(Hint: I'm pretty sure that the weapons manufacturers that sell to Peru aren't freeing the software embedded in those tanks and fighters).

On the contrary, there is no place that you'd have a more compelling motivation to make damn sure you had the freedom to tinker. Again, maybe this isn't the place for something like the GPL, but smart nations simply do not leave the capacity to maintain and modify the defense technology they rely on in the hands of someone else.
posted by weston at 1:09 PM on February 26, 2010