Traveller on a beach, Indonesia. Photograph: Sonny Tumbelaka/AFP/Getty

It's only Tuesday and already it's been an interesting week for the world of digital rights. Not only did the British government changed the wording around its controversial 'three strikes' proposals, but the secretive anti-counterfeiting treaty, Acta, was back in the headlines. Meanwhile, a US judge is still deliberating over the Google book settlement.

As if all that wasn't enough, here's another brick to add to the teetering tower of news, courtesy of Andres Guadamuz, a lecturer in law at the University of Edinburgh.

Guadamuz has done some digging and discovered that an influential lobby group is asking the US government to basically consider open source as the equivalent of piracy - or even worse.

What?



It turns out that the International Intellectual Property Alliance, an umbrella group for organisations including the MPAA and RIAA, has requested with the US Trade Representative to consider countries like Indonesia, Brazil and India for its "Special 301 watchlist" because they use open source software.

What's Special 301? It's a report that examines the "adequacy and effectiveness of intellectual property rights" around the planet - effectively the list of countries that the US government considers enemies of capitalism. It often gets wheeled out as a form of trading pressure - often around pharmaceuticals and counterfeited goods - to try and force governments to change their behaviours.

Now, even could argue that it's no surprise that the USTR - which is intended to encourage free market capitalism - wouldn't like free software, but really it's not quite so straightforward.

I know open source has a tendency to be linked to socialist ideals, but I also think it's an example of the free market in action. When companies can't compete with huge, crushing competitors, they route around it and find another way to reduce costs and compete. Most FOSS isn't state-owned: it just takes price elasticity to its logical conclusion and uses free as a stick to beat its competitors with (would you ever accuse Google, which gives its main product away for free, of being anti-capitalist?).

Still, in countries where the government has legislated the adoption of FOSS, the position makes some sense because it hurts businesses like Microsoft. But that's not the end of it.

No, the really interesting thing that Guadamuz found was that governments don't even need to pass legislation. Even a recommendation can be enough.

Example: last year the Indonesian government sent around a circular to all government departments and state-owned businesses, pushing them towards open source. This, says the IIPA, "encourages government agencies to use "FOSS" (Free Open Source Software) with a view toward implementation by the end of 2011, which the Circular states will result in the use of legitimate open source and FOSS software and a reduction in overall costs of software".

Nothing wrong with that, right? After all, the British government has said it will boost the use of open source software.

But the IIPA suggested that Indonesia deserves Special 301 status because encouraging (not forcing) such takeup "weakens the software industry" and "fails to build respect for intellectual property rights".

From the recommendation:

"The Indonesian government's policy... 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.

Let's forget that the statement ignores the fact that there are plenty of businesses built on the OSS model (RedHat, Wordpress, Canonical for starters). But beyond that, it seems astonishing to me that anyone should imply that simply recommending open source products - products that can be more easily tailored without infringing licensing rules - "undermines" anything.

In fact, IP enforcement is often even more strict in the open source community, and those who infringe licenses or fail to give appropriate credit are often pilloried.

If you're looking at this agog, you should be. It's ludicrous.

But the IIPA and USTR have form here: in recent years they have put Canada on the priority watchlist.