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<nettime> dossier: WIPO knuckles under on open-source software
t byfield on Fri, 29 Aug 2003 11:20:33 +0200 (CEST)


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<nettime> dossier: WIPO knuckles under on open-source software


as always, jamie love's been flushing out the scoundrels -- this time at
WIPO, which first agreed to a meeting on open, collaborative tools then
knuckled under to IPR psychotics intent on suppressing anything and
everything 'open,' in particular open-source software. here's a dossier of
his recent work on WIPO, culled from cptech's 'random bits' list. luckily,
science journos are picking up the story.

cheers,
t

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(1) wash post's jonathan krim: the quiet war over open-source (at WIPO)
(2) lessig on WIPO
(3) MS et al lobby WIPO
(4) WIPO uses open source
(5) OSAIA letter on WIPO to boland 
(6)_nature_ on WIPO fiasco

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(1) wash post's jonathan krim: the quiet war over open-source (at WIPO)
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< http://lists.essential.org/pipermail/random-bits/2003-August/001094.html >

  WP's Jonathan Krim: The Quiet War Over Open-Source (at WIPO)
  James Love [4]james.love {AT} cptech.org 
  Thu Aug 21 10:16:04 2003

Traveling, and didn't see this yesterday.  It has some interesting quotes
from the very quotable Lois Boland.
Jamie

[11]http://www.washingtonpost.com/wp-dyn/articles/A23422-2003Aug20.html

washingtonpost.com

The Quiet War Over Open-Source

By Jonathan Krim

Thursday, August 21, 2003; Page E01

Every day now, it seems, we do battle with technology. If it isn't spam,
it's worms. If it isn't the worms, it's viruses, or hacking, or identity
theft. Sometimes, it's the gadgets and software we buy that are still too
hard to use.

But as technology in general, and the Internet in particular, drives
deeper into the fabric of daily life, battles also rage behind the scenes.
They are struggles for control over how the Internet should work, over who
sets the rules for its pipes and gateways and who owns the material that
moves through them. These are the wars fought with armies of corporate
lobbyists, technologists and citizen activists but largely ignored by the
general public. And none is larger, or carries higher financial stakes,
than the issue with the eye-glazing name of intellectual property.

Consumers are getting a taste of this right now, as the major record
companies sue hundreds of people for stealing their works by using
file-sharing programs. On another front, "open-source" software, which
relies on collaboration and sharing of computer code rather than
traditional for-profit development and distribution of programs, is
capturing the attention of cash-strapped governments and businesses as a
less-expensive alternative to commercial products.

Open-source software has been embraced by some companies that are building
businesses around it. But it is the bane of others, including the
industry's most powerful player, Microsoft Corp. The world's largest
software maker is lobbying furiously in state, national and international
capitals against laws that would promote the consideration or use of
open-source software.

So alarmed agents of Microsoft sprang into high gear in June after a
surprising quote appeared in Nature magazine from an official of the World
Intellectual Property Organization (WIPO). The official said that the
Switzerland-based group of about 180 nations, which promotes
intellectual-property rights and standards around the globe, was intrigued
by the growth of the open-source movement and welcomed the idea of a
meeting devoted to open-source's place in the intellectual-property
landscape.

The proposal for the meeting had come in a letter from nearly 60
technologists, economists and academics from around the world, and was
organized by James Love, who runs the Ralph Nader-affiliated Consumer
Project on Technology.

Love and others argue that in some areas, such as pharmaceuticals or
software that powers critical infrastructure or educational tools,
developing nations in particular would benefit from less restrictive or
alternative copyright, patent or trademark systems.

In short order, lobbyists from Microsoft-funded trade groups were pushing
officials at the State Department and the U.S. Patent and Trademark Office
to squelch the meeting. One lobbyist, Emery Simon with the Business
Software Alliance, said his group objected to the suggestion in the
proposal that overly broad or restrictive intellectual-property rights
might in some cases stunt technological innovation and economic growth.

Simon insists that his group does not oppose open-source software, or
discussion of the issue, but fights to defend the notion that a strong
system of proprietary rights offers the best avenue for the development of
groundbreaking software by giving its inventors economic incentive to do
so.

And he said that the BSA's governing board, composed of several companies
in addition to Microsoft, unanimously opposed the letter and the meeting.

The U.S. government, which wields considerable clout in WIPO, might not
have needed prodding from Microsoft to demand that the idea of an
open-source meeting be quashed.

Lois Boland, director of international relations for the U.S. Patent and
Trademark Office, said that open-source software runs counter to the
mission of WIPO, which is to promote intellectual-property rights.

"To hold a meeting which has as its purpose to disclaim or waive such
rights seems to us to be contrary to the goals of WIPO," she said.

She added that the WIPO official who embraced the meeting had done so
without proper consultation with the member states, and that WIPO's budget
already is strained and cannot accommodate another meeting next year.

Boland said that if groups such as Love's want an international forum for
discussion of open-source, they need to find another organization to host
it.

The WIPO official, Francis Gurry, did not return numerous calls for
comment, but the organization has said it no longer has plans for an
open-source gathering.

The meeting dust-up is further inflaming an argument that has the fervor
of religious debate.

Open-source proponents note that its software is here to stay, gaining
adoption within the federal government and elsewhere. And they argue that
many open-source models rely on property rights through licenses, but
apply them in less traditional ways.

More broadly, though, they envision a world in which the Internet is the
connective tissue that creates a public commons, a place where art and
technology should be shared as well as bought and sold. Why, they ask,
should that not be debated with vigor?

But open-source is not just a political challenge. It strikes a starkly
different, and sometimes opposite, pose from that of traditional
capitalist systems.

And that prospect quickly draws the lobbyists, even if the public isn't
tuned in.

Jonathan Krim's e-mail address is [12]krimj {AT} washpost.com.

--
James Love
[13]http://www.cptech.org mailto:[14]james.love {AT} cptech.org
mobile +1.202.361.3040

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(2) lessig on WIPO
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< http://lists.essential.org/pipermail/random-bits/2003-August/001095.html >

   [Random-bits] Lessig on USG and WIPO Open Source mtg
   James Love [4]james.love {AT} cptech.org 
   Fri Aug 22 11:16:01 2003

---------------------------- Original Message ----------------------------
Subject: [IP] Lessig on USG and WIPO Open Source mtg
From:    "Dave Farber" <[11]dave {AT} farber.net>
Date:    Fri, August 22, 2003 10:13 am
To:      [12]ip {AT} v2.listbox.com
--------------------------------------------------------------------------

>Date: Fri, 22 Aug 2003 10:06:05 -0400
>From: "Mike O'Dell" <[13]mo {AT} ccr.org>
>Subject: lessig on USG and WIPO Open Source mtg
>To: [14]dave {AT} farber.net
>
>
>[15]http://www.lessig.org/blog/archives/001436.shtml


the extremists in power

I don't even know how to begin this story, so stupid and extreme it is.

The World Intellectual Property Organization (WIPO) was convinced by Jamie
Love and others to hold a meeting about "open collaborative models to
develop public goods." One of those models is, of course, open source and
free software. Lobbyists for Microsoft and others apparently (according to
<[16]http://www.washingtonpost.com/wp-dyn/articles/A23422-2003Aug20.html>this
extraordinary story by Jonathan Krim) started lobbying the US government
to get the meeting cancelled. No surprise there. Open source and free
software is a competitor to MSFT's products. Lobbying is increasingly the
way competition is waged in America.

But the astonishing part is the justification for the US opposing the
meeting. According to the Post, Lois Boland, director of international
relations for the U.S. Patent and Trademark Office, said "that open-source
software runs counter to the mission of WIPO, which is to promote
intellectual-property rights." As she is quoted as saying, "To hold a
meeting which has as its purpose to disclaim or waive such rights seems to
us to be contrary to the goals of WIPO."

If Lois Bola said this, then she should be asked to resign. The level of
ignorance built into that statement is astonishing, and the idea that a
government official of her level would be so ignorant is an embarrassment.
First, and most obviously, open-source software is based in
intellectual-property rights. It can't exist (and free software can't have
its effect) without it. Second, the goal of WIPO, and the goal of any
government, should be to promote the right balance of
intellectual-property rights, not simply to promote intellectual property
rights. And finally, if an intellectual property right holder wants to
"disclaim" or "waive" her rights, what business is it of WIPOs? Why should
WIPO oppose a copyright or patent rights holder's choice to do with his or
her rights what he or she wants?

These points are basic. They should be fundamental. That someone who
doesn't understand them is at a high level of this government just shows
how extreme IP policy in America has become.


Archives at: [17]http://www.interesting-people.org/archives/interesting-people/

--
James Love
[18]http://www.cptech.org mailto:[19]james.love {AT} cptech.org
mobile +1.202.361.3040

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(3) MS et al lobby WIPO
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From: James Love <james.love {AT} cptech.org>
Subject: [Random-bits] A few details of Microsoft's lobbying against WIPO event
Date: Wed, 20 Aug 2003 18:44:35 -0400

>From the TechDaily article, it appears as though WIPO had received a
number of calls in opposition to the meeting on open collaborative efforts
to create public goods.  Microsoft has been I believe the main private
sector actor in this (even though the request for the meeting was quite
broader than free/open software).  One group active in opposing the WIPO
event was BSA, a group often run as if it is a subsidiary of Microsoft.  
BSA's Emory Simon was making calls and taking meetings with senior US
government officials to oppose the meeting..  Jeri Clausing, a former NYT
reporter now working for BSA was calling reporters to tell them that WIPO
had cancelled the meeting, and Jeri also told at least one reporter she
had correspondence that WIPO had sent to me, which I found somewhat
surprising.  (In this case, just a letter that seemed like a standard
acknowledgement of the request, that Jeri claimed was something more).  
According to Jeri (whom I called), Mario Correa from BSA was also working
to block the WIPO meeting.  Mario is the head of "software policy" for
BSA.  Mario has been active in opposing government proposals to require
open source software procruement (see below).  Another Micosoft agent who
appears to have been instrumental in raising the spector of that open/free
software was a violation of the GATT was long time Micorosoft defender
Jonathan Zuck.  Zuck's group ACT (web page doesn't work well with Mozilla,
so use MS's EI) features an article by former USPTO and WIPO offical and
recent big pharma lobbyist Dick Wilder about the "lessons the Open Source
community can learn from the SCO/IBM lawsuit."  Act has opposed goverment
rules to favor open source software development and also claims such rules
are a GATT violation.  jamie

http://global.bsa.org/usa/press/newsreleases/2003-06-12.1653.phtml
BSA Testimony on Federal Policy and Open Source Software before the 
Center for Strategic and International Studies
Prepared Remarks of Mario Correa
Director of Software Policy
Business Software Alliance (BSA)

Before the Center for Strategic and International Studies (CSIS)
Federal Policy and Open Source Software

June 12, 2003

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(4) WIPO uses open source
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From: "James Love" <james.love {AT} cptech.org>
Subject: [Random-bits] WIPO goes open source (for it's own software)
Date: Thu, 21 Aug 2003 09:20:18 -0400 (EDT)

STANDING COMMITTEE ON INFORMATION TECHNOLOGIES
INFORMATION TECHNOLOGY PROJECTS WORKING GROUP
Second Session
Geneva, February 3 to 7, 2003
REPORT
Adopted by the Working Group

INTRODUCTION

1.	The Information Technology Projects Working Group (ITPWG) of the
Standing Committee on Information Technologies (SCIT) held its second
session from February 3 to 5, 2003.

2.	The following Member States of WIPO were represented at the session: 
Australia, Bangladesh, Canada, China, Colombia, Costa Rica, Croatia, Czech
Republic, Egypt, Finland, France, Germany, Greece, Guatemala, Hungary,
Indonesia, Ireland, Italy, Japan, Kenya, Lithuania, Malta, Mexico,
Morocco, Nigeria, Norway, Poland, Portugal, Republic of Korea, Romania,
Russian Federation, Spain, Sri Lanka, Thailand, Ukraine, United Kingdom,
United States of America and Zambia (38).

3.	Representatives of League of Arab States (LAS), the Benelux Trademark
Office (BBM), the Eurasian Patent Organization (EAPO), the European Patent
Office (EPO), the Patent Documentation Group (PDG) and the International
Confederation of Societies of Authors and Composers (CISAC) (6) took part
in the session.

4.	The list of participants appears as Annex I to this report.




57.	The Secretariat also reminded delegates that the software will be made
available free to Member States and applicants;  the editor and the Client
will be available free of charge and downloadable via the PCT-SAFE
website;  the receiving server software will be made available to any
Receiving Office under the PCT who requests it;  and a low level
certificate will be obtainable via a WIPO website and it is planned via
WIPONET.  In addition, the Secretariat also expressed interest to
participate in some form of open source, and was already working with the
EPO towards such an arrangement.  With regard to an enterprise version of
PCT-SAFE, contact had been made with patent management software vendors to
see if they were interested in deploying PCT-SAFE software into their own
environments and thereby providing a more multi-user, integrated solution
to the niche of the market where their customers are placed.


60.	The Delegation of the EPO took the floor to comment upon the strength
of cooperation and harmonisation with WIPO.  A Memorandum of Understanding
(MOU) was under preparation to cover the server software whereby the EPO
will take over the PCT client or plug-in once it is operational and it
will be maintained by PCT-SAFE.  In respect of open source, the EPO had
decided to go open source for its full epoline software with respect to
electronic-filing.  Finally, the EPO reminded the Secretariat of the need
to include all electronic filing systems in its promotion of the
functionality of online filing under the PCT.


61.	In response to a question from the Delegation of the United Kingdom
about the future developments of the online filing system and their
inclusion within the MOU between WIPO and the EPO, the Secretariat was
pleased to report that the move, by the EPO to open source, would mean
that future cooperation would be assured and would take place in a more
rich development environment.

73.  In introducing document SCIT/ITPWG/2/5, the Secretariat reminded
delegates that although the process of IPC Reform was likely to continue
for some time, the CLAIMS Project was scheduled for completion by the end
of 2003.  The IPC classification system currently comprised some 70,000
entries and under the reformed system would include a small core layer
with 20,000 stable entries coupled with an advanced layer modeled on the
US Classification which is continuously updated.  The goal of the reform
effort was to establish a Master Classification Database searchable by the
advanced layer.  The CLAIMS Project itself comprised four tracks; 
automatic categorization, translation or linguistic support, development
of IPC tutor areas and IPC support conforming to the ad hoc needs of the
IPC reform community.  Problems had been experienced with the translation
systems but these had been expected and some success was recorded.  With
regard to the IPC tutorials track, open source software had been used for
development and had proved cost effective.  The system had been developed
by the end of 2002 and is currently being loaded with data.

-- 
James Love
http://www.cptech.org mailto:james.love {AT} cptech.org
mobile +1.202.361.3040

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(5) OSAIA letter on WIPO to boland 
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From: James Love <james.love {AT} cptech.org>
Subject: [Random-bits] OSAIA letter to Lois Boland, et al. on WIPO and 
     Open Source
Date: Sat, 23 Aug 2003 01:45:30 -0400

http://osaia.org/modules.php?name=Content&pa=showpage&pid=7

http://www.osaia.org/documents/pto_letter_032108.pdf

Open Source & Industry Alliance
_www.osaia.org_

contact: Ed Black
202.783.0070 x 110 (Office)
202.297.2242 (Mobile)

Will Rodger
202.783.0070 x 105 (Office)
202.486.6774 (Mobile)


NEWS RELEASE
August 22, 2003
For Immediate Release


OSAIA to Administration: Open Source IS Protected by Copyright


The Open Source And Industry Alliance (OSAIA) today deplored recent 
comments of a US Patent and Trademark Office official who claimed that 
copyright law does not protect the rights of open source developers. 
Since open source software licenses rely largely on copyright for their 
enforceability, copyright protection is vitally important to protect 
open source developers from illegal use and reproduction.

In a letter sent to Lois Boland, acting director of the USPTO Office of 
International Relations, OSAIA invited the PTO to begin a dialogue with 
the open source community in order to correct misperceptions concerning 
open source software, which can be used, copied, modified and 
distributed without additional charge so long as additional terms of the 
license are fulfilled.

"The assertion that open source software is not covered by copyright is 
patently absurd," OSAIA Founder Ed Black said. "There is no basis for 
this claim anywhere in law or industry practice. We're simply 
flabbergasted to hear such statements from government officials who are 
supposed to support the rights and obligations of those who use and 
produce intellectual property. Because we assume that this position by 
PTO lacks Administration sanction, we believe clarification is necessary."

Text of the letter follows.

----------------------------------------------

August 22, 2003


Ms. Lois Boland
Acting Director
Office of International Relations
United States Patent & Trademark Office
2121 Crystal Drive
Crystal Park 2
Suite 902
Arlington, VA 22202

Dear Ms. Boland:

We are writing to express our concern about some statements that have 
been attributed to you concerning the copyrightability of open source 
software. These statements were allegedly made in reply to questions 
concerning the cancellation of the proposed World Intellectual Property 
Organization public meeting on openly developed technologies, including 
open source software.

According to an August 19, 2003 article in National Journal's Technology 
Daily, you said that open-source software is not protected under 
copyright law, but only under contract law. Additionally, you reportedly 
said that "[t]o have a meeting whose primary objective is to waive or 
remove [intellectual property] protections seems to go against the 
mission" of the WIPO.

We sincerely hope this article misquoted you, because these statements 
reflect a profound misunderstanding of open source licenses and the 
copyright law. Computer programs have protection under the Copyright Act 
the instant they are fixed in a tangible medium of expression -- that is, 
the instant they are written. Open source licenses such as the General 
Public License or the Berkeley Software Distribution license are 
copyright licenses. They typically affirm that the copyright in the 
software belongs to the licensor, the software's author. The licensor 
grant the licensee the right to reproduce and distribute the work, or to 
create derivative works, so long as the licensee fulfills certain 
conditions, such as publishing the source code of derivative works, and 
making derivative works available to others on royalty free terms.

Thus, the GPL and the BSD are not "waivers" of intellectual property 
rights, but assertions of them. Instead of receiving a royalty fee for 
the license, the open source licensor is receiving something that might 
be of even greater value -- access to the licensee's creative output. 
Significantly, the licensee's subsequent creative output benefits not 
only the licensor, but also the entire community of open source 
developers and users. In turn, the creative outputs of these other open 
source developers benefit the original licensor and licensee, as well as 
the open source community as a whole.

Open sources licenses, therefore, represent a new means of generating 
significant value from copyrights in computer programs. They do so in a 
way that unquestionably promotes the progress of science and the useful 
arts -- the Constitutional objective of our intellectual property system. 
Because open source licenses are based on copyright law and further its 
objectives in an innovative way, we feel that study of open source 
licenses is squarely within the mission of WIPO. WIPO is an excellent 
forum for examining whether the open source model can apply to other 
forms of IP dependent technology, such as pharmaceuticals.

The open source approach may not be appropriate for all developers, 
users, and software products. But open source licenses have existed 
since the 1970s, and have led to significant technological innovations 
that have benefited millions of government, corporate and individual 
users around the world. Moreover, many successful information technology 
businesses have been built upon or are now involved with the development 
and distribution of open source products and services. Companies so 
involved include Intel, Dell, Apple, Oracle, IBM, Sun, Novell, Red Hat, 
SuSE and thousands more. Of all the companies who have written software 
under the GPL as well as non-GPL software to run in conjunction with 
such programs, none, to our knowledge, has ever suggested that their 
rights were not protected by copyright.

Precisely because of the market's rapid acceptance of open source 
software, a handful of companies threatened by the emergence of the open 
source business model have been disseminating misinformation concerning 
open source software and licenses.

We would be pleased to meet with you at your earliest convenience to 
clear up any misconceptions you may have.

Sincerely,

Ed Black
Founder
Open Source And Industry Alliance

President & CEO
Computer & Communications Industry Association


cc: Undersecretary, Intellectual Property & Director Patent & Trademark 
Office James Rogan
Undersecretary, Technology Philip Bond
Chairman Orrin G. Hatch, Senate Committee on the Judiciary
Senator Patrick J. Leahy, Ranking Member Senate Committee on the Judiciary
Chairman F. James Sensenbrenner Jr., House Committee on the Judiciary
Chairman Thomas M. Davis III, House Committee on Government Reform
Chairman Representative Lamar S. Smith, Subcommittee on Courts, the 
Internet and
Intellectual Property
Representative John Conyers Jr., Ranking Member, House Committee on the 
Judiciary
Representative Howard L. Berman, Ranking Member, Subcommittee on Courts, 
the
Internet and Intellectual Property

###

/OSAIA is a project of CCIA. CCIA is an international, nonprofit 
association of computer and communications industry firms, representing 
a broad cross-section of the industry. CCIA is dedicated to preserving 
full, free and open competition throughout its industry. Our members 
employ over a half million workers and generate annual revenues in 
excess of $300 billion./

666 11th Street NW
Washington, DC 20001

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(6)_nature_ on WIPO fiasco
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From: James Love <james.love {AT} cptech.org>
Subject: [Random-bits] Nature: Lobbying by US business interests has shot 
     down proposed WIPO meeting to explore "open" models of innovation
Date: Thu, 28 Aug 2003 11:11:36 -0400

Few items on the WIPO meeting dispute, including at the end, today's article in Nature.

Here is the link to the Slashdot article:
http://yro.slashdot.org/yro/03/08/22/2014231.shtml?tid=103&tid=117&tid=99

Lessig's blog now has a lot of comments on this
http://www.lessig.org/blog/archives/001436.shtml

Paul Kedrosky's slagging me in the Canadian press:
http://www.nationalpost.com/financialpost/story.html?id=238F46ED-4396-4CE9-AB21-4E05167D31D1


Text of Nature article.
NATURE|VOL 424 |28AUGUST 2003 |www.nature.com/

news
Declan Butler

Lobbying by US business interests has shot down a proposed meeting, to be
held by the Geneva-based World Intellectual Property Organization (WIPO)
next year, to explore 'open' models of innovation.

A group of leading scientists and economists suggested the meeting in a 7
July letter to Kamil Idris, director-general of WIPO. They highlighted the
explosion of various open and collaborative projects to create public
goods, such as the Human Genome Project and opensource software, and said
it was time for WIPO to include the approach in its deliberations. Francis
Gurry, assistant director-general and legal counsel at WIPO, told Nature
at the time that the agency welcomed the idea as "a very important and
interesting development".

He added that "the director-general looks forward with enthusiasm to
taking up the invitation to organize a conference to explore the scope and
application of these models"(see Nature 424, 118; 2003).

But Gurry's words seem to have triggered a backlash from firms that would
rather see WIPO working to protect their intellectual property rights.
Gurry says WIPO has since been inundated with calls from trade and
consumer groups and government representatives.

It is understood that lobbyists such as the Business Software Alliance,
which is partly funded by Microsoft, also pressed the US state department
and the US Patent and Trademark Office to have the meeting called off. US
government officials have since spoken out against the idea.

"The request for an open discussion on a range of projects became
transformed into a domestically, as opposed to internationally, polarized
debate about just one 'project':opensource software," says Gurry. As a
result, he says, the meeting is now unlikely to take place.

"The possibility of conducting a policy discussion on intellectual
property of the sort appropriate for an international organization became
increasingly remote,"he claims.

In the United States, the European Union and elsewhere, governments are
considering measures to encourage the public procurement of open-source
software, such as the Linux operating system. This is being vigorously
opposed by some software companies and by the Business Software Alliance.

Economist Paul David of Stanford University in California,who signed the
letter,says he is "appalled"that the meeting should be "scuttled because
of the mere presence of opensource software in a list of many other forms
of collaborative knowledge production".

But Lois Boland, director of international relations for the US Patent and
Trademark Business backlash kills off software meeting Office, says that
open-source software is contrary to WIPO's mission to promote intellectual
property rights."To hold a meeting to disclaim or waive such rights seems
to us to be contrary to the goals ofWIPO,"she says.

The Washington-based Computer and Communications Industry Association,
which represents small companies that support open-source software, has
attacked WIPO's decision not to hold the meeting. Edward Black, president
of the group, says that the association has written to Boland to complain
about her comments.

Tim Hubbard,a genomicist at the Sanger Institute near Cambridge, UK, and a
signatory to the letter, says he is still hopeful that the meeting may
happen."It's not the role of industries regulated by such regimes to
inhibit discussion,"he argues.

Empty seats: lobbying means the Linux penguin will not witness a
discussion of intellectual property.

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