Re: When using open source makes you an enemy of the state

[David Farber <dave () farber net>]

Begin forwarded message:

From: Russ Nelson <nelson () crynwr com>
Date: March 8, 2010 11:19:30 PM EST
To: dave () farber net
Subject: Re: [IP] When using open source makes you an enemy of the state

Your readers may find our response interesting.

David Farber forwards Dewayne Hendricks forwarding Bobbie Johnson:
> <http://www.guardian.co.uk/technology/blog/2010/feb/23/opensource-intellectual-property>
>
> The US copyright lobby has long argued against open source software
> - now Indonesia's in the firing line for encouraging the idea in
> government departments

http://opensource.org/node/511:

The OSI Categorically Rejects IIPA's special pleadings against Open Source

Introduction

Moore's Law, Disk Law, and Fiber Law have created an economic engine
for growth, promising exponentially improving computing, storage, and
networking performance for the foreseeable future. And yet according
to a 2003 UNCTAD report, "there has been no Moore's Law for software,"
and indeed it is because of software that computer systems have become
more expensive, more complex, and less reliable. The global economy
spent $3.4T USD on Information and Communication Technologies in 2008,
of which we estimate $1T USD was wasted on "bad software". And
reconfirming the 2003 report and our own numbers updated for 2010,
others have estimated losses of at least $500B and as much as $6T USD
(meaning that for every dollar spent on ICT, that dollar and almost
one more went down the drain). Whether the annual loss number is
$500B, $1T, or $6T, all represent an unsustainable cost and undeniable
evidence that something in the dominant design of the proprietary
software industry is deeply flawed. (See OSS-2010.pdf for complete
references to all of the above.)

Open source software is an alternative approach to software
development that allows, rather than prohibits, users and developers
to collaborate and innovate together. It encourages, rather than
threatens, transparency and accountability. It rewards meritorious
behavior and it routes around bottlenecks caused by concentration of
power and control. Open source software was the catalyst that helped
effect the revolution of the World Wide Web, where for the first time
in history, the promise of the freedom of the press was available to
anybody with a computer and an Internet connection. Indeed, open
source software was, and remains, the technology of the whole Internet
itself. When Thomas Friedman claimed that open source is the most
powerful and disruptive of the ten flattening forces described in the
best-selling book The World Is Flat, it was no surprise to us. But now
a consortium of industry trade associations, the International
Intellectual Property Alliance (IIPA), has launched an attack against
open source, and so we must stand up, defend our position, and explain
how the use of open source leads to the continued progress of the 21st
century economy.

The successes of open source software are too numerous to mention in a
single article. A few examples establish that open source has become
the most reliable and sustainable software with virtually unlimited
upside potential. The interests of the State, be they security,
accountability, transparency, or economic opportunity, are advanced by
open source. The NSA's SE Linux project singlehandedly restored the
economic viability of a highly secure platform able to securely run a
growing range of innovative applications. Its protections have
resulted in a operating system kernel that has suffered zero critical
security vulnerabilities in more than four years of commercial
availability. The US Department of Defense issued a memo in 2009
stating "To effectively achieve its missions, the Department of
Defense must develop and update its software-based capabilities faster
than ever, to anticipate new threats and respond to continuously
changing requirements. The use of Open Source Software (OSS) can
provide advantages in this regard..." The Executive Office of the
President has been collaborating with the Sunlight Foundation and
others to provide greater transparency into US Federal spending, using
open source software to collect, index, and publish hundreds of
billions of dollars worth of Federal procurements and contracts. And
open source software is the fastest growing segment of the software
industry, registering double-digit organic growth compared to
zero-to-negative growth of the industry as a whole. It is little
wonder that in the State of California, considered by most to be the
epicenter of America's technology industry, Chief Information Officer
Terri Takai published ITPL-10-01, which serves to "formally establish
the use of Open Source Software (OSS) in California state government
as an acceptable practice."

Other nations, seeing the success of open source in US and State
governments, industry, and R&D, have initiated their own
investigations into open source software, and many have liked what
they have found. The CSIS Open Source Policy report documents the
progress of hundreds of open source policies around the world, and
open source policy research studies (referenced by the research
underlying the Open Source Index) show that open source adoption
positively correlates with the Human Development Index. By contrast,
rates of software piracy have no correlation whatsoever with that
index. Moreover, objective quality metrics (published in reports
sponsored by the Department of Homeland Security) show not only that
Open Source Software has achieved a hundredfold higher quality than
typical proprietary software (as measured by defect density per 1000
lines of source code), but open source continues to improve its
quality metrics by double digits per year while proprietary software
remains static in its (not very good) defect density. The fact that
open source software has achieved such a quality differential should
be sufficient for open source to win in a neutral competitive bidding
process--and it does as shown by its revenue and market share
growth. But software is not merely a commodity to be consumed, it is
an investment whose value can increase with proper
stewardship. Customers who buy software with the rights and community
necessary to effect continuous improvement get good value for their
money. Governments who seek those rights are being smart about the
dollars they spend today without artificially limiting the adaptations
they may need to make tomorrow. This is one reason why governments are
not only seeking best value for today's dollar, but the freedoms to
make today's investment more valuable tomorrow, and why open source
has become an explicit consideration in policies, procurements, and
discussions of best practices.  Open Source provides long-term value
beyond proprietary alternatives

Unlike proprietary software, whose value diminishes over time as it
become obsolete (if it was ever useful in the first place), open
source software, as a knowledge commons, permits a kind of compound
interest to accrue to its intellectual capital base. (The theory
underlying this discovery won a Nobel Prize in economics for 2009.) It
should therefore be no surprise that open source software should be
one of the key drivers in advancing national technology objectives
among all nations, whether developing or developed. Anyone who has
seen the progress and the potential of open source software, should be
surprised by an information infrastructure built on software that
prohibits independent improvement, frustrates interoperabilty,
criminalizes collaboration, and defeats Moore's Law. And yet this is
the heart of the IIPA's recommendation. But it is not only the heart
of that recommendation that is rotten.  Attacks by the IIPA are unjust

A recent blog posting at The Guardian about the IIPA's recommendation,
and its influence over US "Special 301" rules, suggests that there is
something well hidden from review: a secret trial to which neither the
accused nor any jury are invited to attend. Andres Guadamuz has done
the digging to reveal that guilt has been read out in a Star
Chamber. Orders have been handed down that are not only unjust, but
entirely arbitrary. An excerpt from Wikipedia provides the following
definition and explanation of the term "Selective Enforcement" as
follows:

   Selective enforcement is the ability that executors of the law
   (such as police officers or administrative agencies, in some
   cases) have to arbitrarily select choice individuals as being
   outside of the law. The use of enforcement discretion in an
   arbitrary way is referred to as selective enforcement or selective
   prosecution.

   Historically, selective enforcement is recognized as a sign of
   tyranny, and an abuse of power, because it violates rule of law,
   allowing men to apply justice only when they choose. Aside from
   this being inherently unjust, it almost inevitably must lead to
   favoritism and extortion, with those empowered to choose being
   able to help their friends, take bribes, and threaten those they
   desire favors from.

Singling out a single country like Indonesia for policies that can be
found across the European Union (not to mention within US civilian,
academic, military, and intelligence communities) is a blatant case of
selective enforcement, one which hides the absurdity of the claims by
the narrowness of their application. The sheer hypocrisy of the claims
made by the IIPA should cause anybody to doubt the merits of those
claims, such as this:

   While IIPA has no issue with one of the stated goals of [the
   Ministry of Administrative Reform (MenPAN) ... Circular Letter
   No. 1 of 2009 issued on March 30, 2009, endorsing the use and
   adoption of open source software within government organizations],
   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.

The IIPA complains that the open source community does not respect
intellectual property. "Intellectual property" conflates trade
secrets, patents, copyrights, and trademarks. By pretending as if
these separate domains are all one common thing, and then arguing by
analogy how all should be understood, the concept of "intellectual
property" has taken on a meaning that has no actual basis in
law. Worse, this meaning has been construed to actually contradict the
original purpose that was enshrined into the US Constitution, which
was "To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries." The copyright clause
speaks not at all to any natural rights of Authors and Inventors, but
only to the goal of progress. If there were any invention worthy of
protection by law, it would be the invention of how to make more
progress in science and the useful arts. Which is precisely what open
source software now appears to be doing.

But even if one does not believe that open source is a better way of
doing things, there is no question that open source is equally
dependent--no more, no less--than proprietary software on the strong
protections of copyright law. Open source depends on the strong
ability to grant rights to those who wish to copy our work--a true
copy right!--and thus we respect copyright at least as much as those
who don't trust it enough to call it by its real name. If anything,
the ones guilty of not respecting copyright are those who invent new
terms like "intellectual property" and then write up and promote their
own legal theories: as to how such stuff is supposed to work, who
should be rewarded for buying into their system, and who should be
punished if they do not.

Open source software is today a part of every commercial software
solution. IIPA's assertion that expecting use of open source software
"denies many legitimate companies access to the government market" is
a desperate distortion of the truth. It requires a suspension of
belief in core suppliers like IBM, Oracle, Red Hat, Microsoft, HP -
and most others - all of whom have already integrated open source into
their business in one of the ways Gartner describes. To say it
"undermines [the software market's] long-term competitiveness" beggars
belief, given the enormous competitive impetus the industry has
received from the relaxation of lock-in and the introduction of new
competitive innovation from open source. Far from being "a significant
market access barrier", an open source requirement corrects the power
a small number of suppliers have been able to derive from lock-in and
the exercise of monopoly - in some cases illegally and unremedied.

Further, IIPA's position represents a direct attack on the very
government to which it is making a recommendation. If expecting the
presence of open source did indeed "simply weaken the software
industry", the US government itself would be culpable since the
Department of Defence has issued and clarified clear guidance
preferring open source software for most purposes. By their logic, it
would be justifiable for foreign governments to embargo the USA.

The greatest outrage arose from the assertion that "it fails to build
respect for intellectual property rights", which compresses into a few
words both an inversion of the truth and a dishonest, self-serving
conceptual framing. Open source software has no impact on the use of
trademarks, patents or trade secrets, so the stew of "intellectual
property" here actually refers only to copyright. To say that open
source fails to build respect for copyright is ridiculous. Open source
licensing is copyright licensing and thus depends upon and promotes
the greatest possible respect for copyright. Without that respect,
open source software would be impossible. One suspects the comment is
derived more from a desire to mislead government for commercial
purposes by associating open source with file sharing in order to
smear and discredit it from the worldview of the RIAA.  Open Source
supports business

Open Source was not parachuted in from an alternate universe. It is a
result of the ordinary business decision to build versus
buy. Businesses purchase some software and write some other software
themselves. They have found that they can reduce their cost of writing
software by sharing it with the public. They turn the software into a
commodity, available at minimal cost. Inevitably, this is going to
annoy the people who would rather that software be a scarce economic
good only available through certain vendors (themselves). Of course
they have the right to make their case, as they have. But their case
must be clearly identified as special pleading designed to advance
their own ends, not a general defense of business interests.
Conclusion

The entire position taken by IIPA is unbalanced. It relies on outdated
definitions, special interests and a fear of innovation and new
business model opportunities. It blends them together to abuse an
outdated mechanism of the US government with a condemnation that
applies to the US itself.. America has a role in defending free
markets around the world. The IIPA's stance does not support that
role, and should not be respected.

We call on national organizations, such as Open Source for America, to
take action by representing the large and growing open source
community.

-- 
--my blog is at    http://blog.russnelson.com
Crynwr supports open source software
521 Pleasant Valley Rd. | +1 315-600-8815
Potsdam, NY 13676-3213  |     Sheepdog       




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