Misery and Intellectual Property Rights
Trashing Free Software
Toni Solo, CounterPunch.com, October 10, 2003

"In a world without fences who needs gates?" The question on the T-shirt flags the developing struggle between Microsoft, led by Bill Gates, and its rapidly growing open source software rivals. The arguments around patents, copyright and software mark another decisive failure for hypocritical advocates of "free trade". Perhaps only on agricultural policy are neo-liberal arguments more obvious as shameless propaganda for monopoly capitalism.

The term open source software--the opposite of proprietary software--applies to computer applications made freely available under a public license agreement so anyone can adapt and improve them. The most common complaints about Microsoft's proprietary software programs are their relatively high cost and that, when they break down, only Microsoft can fix them. Increasingly, large organizations of all kinds are opting for open source solutions to their computer needs because open source products are generally cheaper, more reliable and easier to fix when they go wrong. The personal computer market is not far behind.

Some of the biggest buyers are national or local government bodies. In May this year the city authority of Munich decided to convert its 14,000 computers to an open source operating system (the most well-known, called Linux). Microsoft worked hard to try and swing the deal their way, but still got turned down. In Brazil, the government is planning to use open source software in up to 80% of its computers. In Spain and Australia, municipal authorities have ruled that purchasing policies must prioritize open source programs. In September this year the governments of Japan, China and South Korea agreed to start a joint open-source software project for a wide range of applications.

The relentless whine of the "free " market

Not surprisingly with billions of dollars of business at stake, resistance to regional, national and local government moves in favour of open source software is fierce. In classical neo-lib style, Microsoft and its trade supporters have argued for deregulated markets. Neo-lib propagandists churn out declarations like, "Decisions about software purchase should be left to the market, allowing all producers--open source and proprietary--to compete for customers. Products should be evaluated based on the value they provide to the end users."1

What the neolibs are unable to admit is that cities like Munich and countries like China and Brazil are preparing statutes after the fact. They weighed their options and decided clearly against Microsoft. The sums are simple. As the head of Brazil's Information Technology Institute, Sergio Amadeu puts it, "If we do this right, over 17 million people will have access to computers. If every one of them had to pay 100 reales for their desktop software then we'll be sending 1700 million reales (US$600 million) to pay for licenses. Without free software it's impossible to have a significant policy of digital inclusiveness."2

But regulation is also necessary to prevent huge businesses like Microsoft distorting the market by subsidising products in the short term in order to clean up long term once their less wealthy open source competitors are forced out. In fact, leading free software proponents view legislation with ambivalence. For example Richard Stallman, founder and president of the Free Software Foundation, "These laws are not the kind of help we most ask for from governments...What we ask is that they not interfere with us with things like the Digital Millennium Copyright Act, with software patents, with prohibitions on reverse engineering that enable companies like Microsoft to make proprietary data formats and prohibit our work. Those are the main obstacles to satisfying the software needs of humanity."3

Not only government bodies looking to get the best deal are choosing open source software. Early this year, the Reuters Market Data System (RMDS) switched to Linux under pressure from customers. A Reuters systems manager said "The call for RMDS for Linux has been astounding... They saw performance improvements and cost savings. These folks are bankers, and they know you almost never get more for less -- but this time they did."4 Wall Street monsters like Merrill Lynch, Morgan Stanley, Credit Suisse First Boston and the Goldman Sachs Group have all moved to open source software.

Free big deal?

So what is the great attraction of open source software? Its low cost is one. But perhaps not the most important. Reliability is another. The open source Apache program for internet web servers leads the market precisely because it combines low price with high reliability.

Security is also a major concern. The persistent problems with computer viruses that beset Windows for many people are just a foretaste of future problems. As one information technology analyst put it recently, "Everyone in the industry knows the world's chronic dependence on Microsoft products is one day going to cause catastrophe, yet many people who know about security are likely to be reluctant to speak out."5

Security is closely tied to independence. Says Phil Hughes publisher of Linux Journal, "Commercial proprietary software companies have attempted to undermine Linux acceptance by questioning the legality and practicality of the General Public License. But once there has been an open discussion of the terms and conditions there has been little questioning of the license. In addition, the advantage of open source code, of knowing that one is not dependent on the software vendor for support has tended to outweigh any doubts about the validity of the licensing procedure."6 Backing up that analysis, big computer companies like Hewlett Packard, Sun Microsystems and IBM have moved to open source software. They too want low cost combined with reliability, security and independence.

But Phil Hughes' optimism about legal issues may be premature. Microsoft and its trade supporters are more than ready to defend their market share. As long ago as November 1998, Microsoft anxiety at the market success of open source software became apparent when internal documents, the so-called Halloween Documents, were made public. Now Microsoft and other trade allies are supporting lobby organizations like Initiative for Software Choice (ISC), a project of the Computing Technology Industry Association. Microsoft say, "Microsoft is a founding member and maintains a strong commitment to the ISC. This commitment is based on Microsoft's support of the initiative's belief that it is important to allow multiple software development, business and licensing models to compete on their merits and without government regulations that would seek to prefer one model over another."7

Sound familiar? It should. It's the same argument the US and the EU deploy on agriculture on behalf of their multinationals against developing countries. In that particular "free trade" conflict, a massively subsidised, genetically modified, machinery and chemical-warfare wielding colossus enters the arena against a tiny malnourished day labourer armed, if they are lucky, with a mattock.

Intellectual property and the public good

In the case of software, with the two sides a little more even, the unconvincing complaints of unfair trade from giant, convicted anti-trust offender Microsoft and its allies, are supplemented by efforts to create market fear and uncertainty. But after losing the historic anti-trust judgement back in April 2000, Microsoft is more careful about how it deals with competitors. As open source advocate Bruce Perens puts it "I expect that Microsoft will try and find other proxies to do their dirty work for them."8

In March this year a proprietary software company called SCO brought a billion dollar law suit against IBM citing breach of confidentiality for disclosing alleged trade secrets to the public. SCO and IBM had collaborated on software development in the past. But when IBM switched much of its program development to take advantage of open source software, its work with SCO was largely superseded. Essentially a financial dispute between two very big companies, the law suit has little to do directly with open source software businesses but has caused insecurity among potential customers.

The underlying issue is that of intellectual property rights – patents and copyright--and how they affect trade and economic development. Phil Hughes again, "It's very easy to make a jump from the open, free, cooperative, non-hierarchical base of Linux commercial success to questions about the need for or even the fundamental viability of intellectual property rights as currently practised and understood. This affects the general public good in a huge variety of ways. For example, the public health implications of patenting generic medicines, or closed source electoral software susceptible to tampering or other corruption, or food security in impoverished developing countries--perhaps even the very possibility of sustainable technological development in the developing world. The basic issues seem to be ones of access to information and capacity to innovate."

When the United States and the rest of Europe were struggling to catch up and overtake Great Britain as industrial powers back in the nineteenth century, they depended on copying technology. In those days it was impossible to enforce patent and copyright. Now the major economic powers, through their inherent financial might and the World Trade Organization, their global all-in-one sheriff, judge and jury, can intimidate weaker developing countries so as to keep them in their neo-colonial place.

For "free trade" advocates, there's the rub. Anything that is patented or copyrighted can never be freely traded. Neoliberal propagandists go very quiet when their clarion calls for deregulation come bang up against multinational patent rights. Richard Stallman observes, "There is a partial similarity between free software and globalization, but also a major difference. The advocates of "free" trade, and neoliberalism in general, argue that it creates wealth. That is true--but it also concentrates wealth. The result is that only the rich benefit. The poor gain little; they may even lose, as has happened in the US. Free software is different, because it works against the concentration of wealth. (Copyright is a major factor for concentration.) So when free software creates more wealth, the benefits are general."9

The human factor – freedom and creativity

Free software enthusiasts really seem to be arguing for a return to the practice of the 1950s and 1960s when software was freely shared so as to promote rapid development of computer applications. They say it is essential to be able to freely run programs, study how they work, adapt them, make copies to help other people and release improvements to the public, so everyone benefits. Access to program source code, the kernel of any computer application, is a precondition for these freedoms--something that is anathema to proprietary software companies like Microsoft whose fortunes are based on keeping people dependent on paying for their software.

Another baffling factor for the neo-liberals is why anyone would want to contribute their work for free. That bafflement is understandable. Creative solidarity led tens of thousands of software programmers around the world to cooperate and create the Linux operating system because the achievement and the benefits it brought to so many other people were worthwhile in their own right. That phenomenon is incomprehensible to anyone looking for dollars on the bottom line. Free software has little to do with a free lunch or a free ride and everything to do with liberty and creativity, freedom of thought, speech and expression. The neo-liberal ideologues currently dominating international economic policy will never understand that.

The U.N. World Summit on the Information Society (WSIS) in December this year is probably the highest profile event so far to address these issues. It is the first of two world summits on communications and information technology scheduled to take place in Geneva. It is likely to be another forum for dispute between the US and the EU.10 Despite the fact that large US government departments, like the Department of Defense, have opted for open source software, the US government position is officially neutral. A Commerce Department spokesman is quoted as saying "Our view on open source is that the U.S. and foreign governments need to be technology neutral in its procurement and R&D investments."11

Meanwhile in Europe, on September 24th, the European Parliament approved amendments to a European Commission directive on information technology intellectual property rights which effectively insists that in Europe software should not be subject to patents. This vote could affect over 20,000 software patents accepted by the European patent office. Whether the democratic will of people in Europe expressed through their parliament survives industry lobbying of government ministers in the Council of Europe remains to be seen.

Patented poverty--recipe for under-development

A year ago the independent UK funded Commission on Intellectual Property Rights reported on the impact of intellectual property rights on developing countries. Chaired by Professor John Barton of Stanford University, the report confirmed that poor countries suffer badly as a result of patents and copyrights affecting health, agriculture, education and information technology. True to the style of these commissions, Professor Barton heavily understated the case, "The temptation to impose very strict protection because of the ease with which software and other digital media can be copied may diminish the very real benefits they could bring to developing countries, particularly in accessing educational and scientific documents at low cost."12

This kind of pronouncement by comfortable career academics (who would never be asked to chair such commissions were their conclusions likely to be contoversial) belies reality. The neo-liberal bureaucrats driving international development policy have a destructive and impoverished vision derived from centuries of colonialism and patriarchy. Human creativity and natural diversity have little place in their reduced, profit obsessed world. For them it is all the same whether they promote patents for basmati rice or for some obscure software patch.

Voices from oppressed sectors of the developing world speak more directly than Professor Barton. As Indian writer Vandana Shiva says, "Basmati, neem, pepper, bitter gourd, turmeric . . . every aspect of the innovation embodied in our indigenous food and medicinal systems is now being pirated and patented. The knowledge of the poor is being converted into the property of global corporations, creating a situation where the poor will have to pay for the seeds and medicines they have evolved and have used to meet their needs for nutrition and health care."13 Wholesale enforcement of intellectual property rights brings misery and untimely death to many millions of people the world over.

The conservative US poet Robert Frost once wrote "Good fences make good neighbours". In the case of software, as in everything else, global multinationals have trampled at will over every neighbour in sight, from Brazil to Korea. Now those countries are struggling to set things right as best they can. One thing they are able to do is adopt free software like Linux. But the powerful proprietary software lobby is determined to stop them. We can be better neighbours by defending open source software and adopting Linux ourselves. Remember that T-shirt.

Toni Solo is an activist based in Central America. Contact  tonisolo52@yahoo.com.

1. 'New Protectionism: Mandates for Open Source Software', Citizens for a Sound Economy August 27, 2003

2. "El otro pinguino--Avance del software libre en la administracion argentina" Andrea Ferrari, Pagina 12, September 29th 2003 www.rebelion.org

3. 'Governments push open-source software', August 29, 2001, by Paul Festa, CNET

4. "Banks Want to Swim With Penguin", Wired News, February 3rd 2003

5. John Naughton, Observer (UK Sunday newspaper). Sunday October 5th.

6. Interviewed for this article

7. "The politics of open-source software", by Declan McCullagh, July 14 2003, CNET

8. 'Open source confronts IP issues--Building on grass-roots heritage, open source facing commercial IP practices' by Robert McMillan, Ed Scannell. InfoWorld August 15, 2003

9. Quoted in (In "Is Free Software Inevitable?" Linas Vepstas , February-July 2001

10. The activist group Geneva-03 is asking all interested people to get involved with their initiative around the WSIS event. www.geneva03.org

11. 'Open source' software trend faces barriers', by William New, National Journal's Technology Daily, August 25, 2003, www.govexec.com

12. 'Intellectual property rights "harm poor" ', by Alex Kirby, 12 September 2002, BBC Online

13. 'GLOBALIZATION AND POVERTY--Economic globalization has become a war against nature and the poor.' by Vandana Shiva, from the review Resurgence issue 202