Special 301: FOSS users. Now we're all Communists and Criminals

Special 301: FOSS users. Now we're all Communists and Criminals

There seems to be no respite from the predations of Microsoft FUD and the machinations of Big Business. Just when it seemed safe to come out of the closet and admit to being a user of free and open source software without being accused of being a Communist, it appears that we are now criminals too--even if we are not using pirated versions of proprietary software. The culprit this time is something called "Special 301", an annual review of the status of foreign intellectual property laws carried out under the auspices of the Office of the US Trade Representative (USTR) which is an Executive Office of the President. It's definition of criminal would make criminals of every single user of FOSS.

Special 301 is not a specific attack on individuals users of GNU/Linux. It's target is foreign governments with less restrictive copyright laws than the United States. You can bet your bottom dollar that it wouldn't stop there. Private individuals would be next. Now, I have an unscientific notion that many FOSS users are of a liberal, not to say leftwing bent. I'm somewhat atypical here: anyone who knows me would probably describe me as being somewhere to the right of Atilla the Hun. So, being described as some pinko subversive causes me to smile -- a knowing smile. I can live with that.

I draw the line at being classed implicitly as a "criminal"

You don't have to be a fully paid up member of the Guardian reading, lentil chewing, metropolitan chattering classes to know, understand and love the Unix philosophy (it's a wide church is Unix) but I draw the line at being classed implicitly as a "criminal". That's funny, yes. But it's an insult too far, so let's take a look at this preposterous equivalence to see what they really mean and who are the fellow travellers who stand to benefit from it.

The USTR has a little list

Yes, you read that right. It has watch lists and there you were thinking watch lists existed only to monitor terrorists. Think again. According to their official website Saudi Arabia has just been removed from that list for showing improved IPR protection. In their thumbnail sketch of Special 301 they describe the duty of the USTR "identify those countries that deny adequate and effective protection for IPR or deny fair and equitable market access for persons that rely on intellectual property protection". Who's on the list? Almost forty countries sorted under risk categories and that watchlist is being promoted to the USTR by the International Intellectual Property Alliance (IIPA). This organisation includes many familiar names: MPAA and RIAA to name two--and these two organisations are known supports of DRM and DRM requires closed, proprietary systems to function. You simply can't force DRM on FOSS. The Business Software Alliance (BSA) is also a member of the IIPA and Microsoft is a member of the BSA. Getting the picture?

You cannot reasonably argue against the protection of legitimate business interests but the sinister part of that quote is the targetting of any country denying market access for persons that rely on intellectual property protection. The internet is awash with stories of companies, Councils and entire countries adopting and deploying open source in preference to Windows. That has not gone unnoticed. Apparently, dealing with pirated software is no enough. The mere act of advocating and or subsequently deploying FOSS is deemed as a form of piracy or economic warfare because it somehow deprives proprietary software the opportunity to compete.

Terms like "anti-competitive" and "anti-business", when used by Microsoft and their ilk, are just code words concealing demands for proprietary control and monopoly

There are many reasons why businesses and countries (especially relatively poor ones) adopt FOSS: cost, security and, yes, trying to eliminate pirated software to keep the Americans and Europeans off their backs. Yet, ironically, that very adoption renders them liable to inclusion on a watchlist. There is much talk about how opting for open source creates "trade barriers" (!). and inhibits a "level playing field" for software based on IPR (Intellectual Property Rights). Worse, advocating FOSS fails to build respect for for IPR and denies access to government markets for their product and thus impeded competitiveness (when, in reality, it is closed source that creates barriers). Terms like "anti-competitive" and "anti-business", when used by Microsoft and their ilk, are just code words concealing demands for proprietary control and monopoly. And appeals to IPR exploit confusion and misunderstanding about the actual nature of intellectual property--a term the FSF describes as "a seductive mirage". (You can read the FSF response to the IIPA on their website.

FOSS has IPR too: it's called copyleft

This is bizarre. These organisations seem to be blissfully unaware of the fact that for years they and others like Microsoft used FUD and economic threats to create a rigged playing filed to favour proprietary software. Now they are bleating because the field has been tilted back to the level. They also seem to conveniently ignore the fact that FOSS is not some kind of lawless wild west badlands. FOSS has IPR too. It's called the GPL (and all its variants) and it operates under copyleft. If you release software under the GPL you are as legally bound to respect its unique licence as you would be if you accept Microsoft's EULA.

By using FOSS and the GPL you are not violating proprietary copyright. You are just choosing and "building respect" for a different kind of licence. Normally, when countries erect trade barriers it's called protectionism. Now we seem to have reverse or proxy protectionism where you attempt to prevent adoption of FOSS by invoking the digital equivalent of blasphemy laws. Sounds like Eric Cartman demanding "respect my authority". As far as competition is concerned, these bodies seem to have a very strange definition of that word. A monopolistic model of proprietary software can inhibit healthy competition and innovation. You need only look at how Mozilla's Firefox browser has grabbed a large and increasing market share and forced Microsoft to innovate the near moribund IE6 browser with imitative features, to see that competition is good. The appeal to "build respect" is nothing less than an appeal to unconditional obedience to authority. They seem to be living in the world as if it was before the Reformation or the Enlightenment.

The IIPA's had an irony bypass

GNU/Linux and other Unix variants may not have gained the degree of traction exercised by Microsoft on the desktop but their penetration in the server domain is substantial. Aren't the bodies lobbying the USTR hard for adoption of Special 301 aware that Yahoo, Google and many US governments use FOSS? Far from being anti-business, if the nascent Google had been forced to pay a Windows licence for every copy installed on their first server farm and used buggy, insecure proprietary software from Redmond it is doubtful that it would have got off the ground to launch itself to global dominance (though it has also used proprietary stuff too). Have they visited the official Whitehouse site recently? Yep, it runs on Drupal, an open and free Content Management System (CMS). Are they going to put Obama on a priority watchlist? Will the CIA be monitoring it? Nope. It's using Open Source Intelligence. Oops! Whatever you do, don't tell them that the US Navy nuclear submarine fleet is using GNU/Linux. Run silent, run deep, run Foss. Court martial those criminals immediately.

codeweavers and WINE. Paid for and free software in harmony

One of the classic, erroneous assumptions made by critics of FOSS exploited by these umbrella bodies is that it is anti-business. This is one of those persistent urban myths, conjuring up images of spotty, geeky adolescents coding away in manky bedrooms. Doubtless, much coding is done for free that way and released under the GPL simply because an "amateur" software developer had an itch to scratch or had to write the software themselves because it simply wasn't available but much FOSS software was, is and will continue to be written by professional developers. They work for companies like Redhat, Canonical and SUSE. They write and release code under the GPL and its variants, give it to the community and they can develop it further and in new directions and the companies can reuse it. A perfect example of this mutually beneficial symbiosis is the relationship between Codeweavers and the WINE project--and that to facilitate Windows software on GNU/Linux.

Foss: capitalism, red in tooth and claw?

I suspect that bodies like the IIPA know all this. They just choose to obfuscate for the purpose of advancing their business model and profits but that doesn't mean we shouldn't be worried by this latest attempt to mug the USTR; a body I suspect, like many governments across the world, that is only too happy to bend an ear to lobbies muttering darkly about rogue states, piracy and copyright. The real irony of course is that FOSS represents a form of untrammeled free-market capitalism which should be name checked in the writings of Frederick Hayek and Karl Popper. It's that subversive. Thank God.



Robert Romberger's picture

That is what this Special 301 is really about. FOSS continues to cut into the proprietary software revenue stream, and this is the only way they know to stop the bleeding.

FWIW, I'm considered a conservative (Republican if you want to go that far), but I am also smart enough to think about where my money goes and to get the best value for it. It is because of that way of thinking that first got me started using FOSS. The other benefits of FOSS came to light after I started using it and "sealed the deal". I use proprietary software because I have to for work, but even then I look for and use (whenever possible) FOSS to better do my job.

Call me a pinko, communist if you must, but I am not a criminal for thinking for myself.

Author information

Gary Richmond's picture


A retired but passionate user of free and open source for nearly ten years, novice Python programmer, Ubuntu user, musical wanabee when "playing" piano and guitar. When not torturing musical instruments, rumoured to be translating Vogon poetry into Swahili.