OSFA Refutes IIPA’s Attack on Open Source Software

In February 2010, the International Intellectual Property Association (IIPA) asked the U.S. Trade Representative (USTR) to put Indonesia, Brazil, India, the Philippines, Thailand and Vietnam on its "Special 301” watch list in part because of their policies encouraging the adoption of open source software (OSS) by government agencies.

Open Source for America (OSFA) believes the IIPA's request to be both irresponsible and misleading in its characterization of OSS. OSFA strongly urges the USTR, and all government agencies, to firmly reject such unfounded pressure to blacklist or penalize any country for policies allowing or encouraging the use of OSS.

OSFA is a coalition that encourages broader U.S. federal government support of and participation in open source technologies. OSFA includes a diverse cross-section of technology industry leaders, associations, non-governmental organizations, academic/research institutions and communities.

Regarding Indonesia’s open source procurement policy, the IIPA states:

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.  [note: emphasis added]

The allegations that OSS is not an intellectual creation, or that using or preferring open source software means that one does not respect intellectual property rights are fundamentally false and misleading. OSFA believes the IIPA's statement disregards the following points:

• Open source is intellectual property. OSS is licensed, and at its core depends upon and promotes the greatest possible respect for copyright. Users must have a license from the copyright holder before they can obtain a copy of software to run on their system. Authors of OSS exercise and celebrate their intellectual property rights by generally allowing users the freedom to redistribute, copy, and/or modify the code under a specific OSI-approved license.
  


• Open source software encourages market competition. By its very nature, the source code of OSS is available to all, meaning that any company can build upon the software for its own offerings. It can be maintained and updated by any vendor who chooses to enter that market. As such, OSS reduces barriers to both entry and exit into the marketplace for all vendors. In this way, a policy such as Indonesia’s encourages greater innovation and competition, quite the opposite of the IIPA allegations that it “denies many legitimate companies access to the government market.”
  

Furthermore, U.S. based companies are leading providers of the open source solutions that are being leveraged by governments globally. U.S. based vendors have supplied the solutions behind the new WhiteHouse.gov and other initiatives (e.g., HHS' NHIN Connect, DHS' Virtual USA, NASA's Nebula Cloud, VA's VISTA and the just announced 311 Open Source in San Francisco, Los Angeles and Boston) being successfully pursued by the Obama Administration.


• Open source software use is growing at all levels of U.S. government. OSS is being leveraged to great advantage in the intelligence, military, and civilian sectors of the U.S. federal government as well as various state and local governments, including Vermont and California. The U.S. Department of Defense issued a guidance memo in October 2009 outlining the positive aspects of OSS that should be considered when conducting market research on software for Department use.
  

Some of the benefits noted in the memo include:

• The continuous and broad peer-review enabled by publicly available source code supports software reliability and security efforts through the identification and elimination of defects that might otherwise go unrecognized by a more limited core development team.   
  
• The unrestricted ability to modify software source code enables the Department to respond more rapidly to changing situations, missions, and future threats.
  
• Reliance on a particular software developer or vendor due to proprietary restrictions may be reduced by the use of OSS, which can be operated and maintained by multiple vendors, thus reducing barriers to entry and exit.
  
• Open source licenses do not restrict who can use the software or the fields of endeavor in which the software can be used. Therefore, OSS provides a net-centric licensing model that enables rapid provisioning of both known and unanticipated users.
  
• By sharing the responsibility for maintenance of OSS with other users, the Department can benefit by reducing the total cost of ownership for software, particularly compared with software for which the Department has sole responsibility for maintenance.
  
• OSS is particularly suitable for rapid prototyping and experimentation, where the ability to "test drive" the software with minimal costs and administrative delays can be important.

Quotes: 

• The U.S. Trade Representative (USTR) should not penalize any country for policies allowing or encouraging the use of open source software. Such pressure is based on unfounded claims that open source software weakens intellectual property and the software industry. Not only are such claims untrue, but our own state and federal government departments increasingly use open source software and contribute to open source projects. Open Source for America calls on the USTR to reject the statements of the IIPA and to refuse to place any country on the "Special 301" watch list because of their adoption and support of open source software.

Terri Molini, founding member, Open Source for America 

• The 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.

Michael Tiemann, president of OSI Board