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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.