Open source under threat from ‘grey’ IP laws

Incomplete laws and intense lobbying from the software industry are contrary to the values of free software and continue to pose a threat to its existence says an independent technology consultant and writer from New Zealand.

Colin Jackson, who is based in Wellington, says people who infringe copyright are often compared with hardened criminals, but in some cases so-called intellectual property infringements may not be against the law.

In a presentation at this year’s Linux.conf.au Linux and open source conference in Wellington, New Zealand, Jackson said free software remains under threat from the expansion of copyright, misguided software patents, the desire to control the Internet by companies whose business model it threatens and the secretive Anti-Counterfeiting Trade Agreement (ACTA) treaty.

During his presentation Jackson asked the fundamental question of “what does IP mean?” and said the media and the legal profession continue to peddle vague definitions for the variety of things “IP” can mean, including the concepts of copyright and patents.

“We need to push back, as the term is meaningless and it can provide a limited monopoly over some things,” he said.

“We have a good specification for property ownership, but it is completely debatable about what the law should say about IP [and] it’s not clear what the law says about ownership of IP.”

Jackson said laws governing IP rights often get extended in favour of the rights holder as there is no natural specification for IP law and “you get endless extensions because you are arguing over a grey area”.

“Almost all software is built on what has come before,” he said. “Even Isaac Newton was very libellous, but he acknowledged the debt to scientists before him.”

“We have the endless expansion of copyright which can monopolise what we now regard as commons.”

Jackson sees the law as an “operating system” because the law sets the framework of how society operates.

“The law defines what we all do, particularly with copyrights and free software, but the law is not naturally clear,” he said.

Jackson said in some countries copyright infringement can be an offence, but not a crime.

“Even if it was a crime, we have a situation where we are being lied to,” he said.

Jackson said the ACTA agreement has a chapter about the Internet, including a recommendation for mandatory imprisonment for infringement.

“What bothers me about the treaty is it is being negotiated in secret and everyone that sees it must enter into an NDA agreement,” he said.

Jackson also chided the Australia-US Free Trade Agreement that has resulted in Australia giving away a lot of IP restrictions.

“Let’s hope that doesn’t happen here,” he said of New Zealand.

Jackson recommends people lobby for ACTA to be made public.

“I ‘m not against trade agreements but we need to decide what we want to give away.”