Microsoft's Russia problem highlights a bigger problem

Many companies go on the defensive or go into denial mode, head-in-the-sand mode, and even petulant adolescent mode when confronted by reports like this one in the Sunday New York Times. Not Microsoft. In the face of clear evidence that Microsoft has been used by Russian authorities to crack down on activists under a thinly veiled pretext of intellectual property enforcement, Microsoft reacted in a grown-up, responsible manner. Senior Vice President and General Counsel Brad Smith wrote a long blog post the very next day in which Microsoft accepted full responsibility and accountability for what has happened in Russia, launched an independent investigation, and announced that Microsoft will release a free blanket license for use of Microsoft software by non governmental organizations and take further measures to prevent authorities from raiding NGO offices on vague allegations of using pirated Microsoft software. The NYT follow-up story is here. 

We've yet to see the text of the new blanket license. My understanding is that it will not be for global use, but rather is an emergency measure for use in specific countries where the kind of problem described in the NYT story has happened or is seriously likely to happen. Microsoft already has an existing program to donate free and legal software to NGO's which organizations all around the world can avail themselves of. 

As a member of the Global Network Initiative (on whose board of directors I currently sit) Microsoft is coordinating closely with several human rights groups to try to ensure that the word gets out about the new blanket license as well as the existing software donation program, and is showing seriousness about making sure that vulnerable groups get the legal information and access to legal advice that they require. Efforts are also being made to make clear to authorities that Microsoft's concerns about piracy should not be used as a tool to crack down on political activism. 

While Microsoft has received deserved praise and positive press for its rapid response, it is not escaping criticism. Alan Wexelblat at Copyfight points out correctly that human rights groups have been discussing the over-all problem with Microsoft for some time, but that Microsoft did not act forcefully enough until the bad publicity spurred them into action. 

Unfortunately, this is the kind of thing that can happen with a big multinational corporation whose bread and butter depends on the sale of intellectual property. One can easily imagine how the people whose job it is to implement the company's GNI commitments to institutionalize respect and concern for human rights throughout all far-flung branches of Microsoft were not nearly as visible, audible, or powerful in the eyes of Microsoft's local employees and legal counsel compared to those sending a very strong message - with very concrete sets of incentives and disincentives - from headquarters about the need to combat software piracy.  Of course, piracy is rampant in Russia and many other countries where human rights violations also happen to be rampant.

Intellectual property law professor Michael Geist discusses the broader problem of messaging and priorities not only by American multinationals but also by the U.S. government, whose trade policies are shaped by heavy lobbying by U.S. companies who are pushing for stronger global IP protections: 

While the Microsoft response is a good one, it must be noted the abuse of IP enforcement is surely connected to efforts by the U.S. government and copyright lobby groups to actively encourage Russia to increase its IP enforcement.  The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list.  The IIPA, the industry lobby group that includes software associations,pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases.  In fact, the IIPA complained that Russian authorities do not seize enough computers when conducting raids.  On top of all this is the Anti-Counterfeiting Trade Agreement, which will provide Russia with a template to follow on IP enforcement, including new seizure powers with less court oversight.  

It has often been pointed out that the ACTA/Special 301 report approach seeks to export tougher enforcement measures - often to countries where free speech is not a given - without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.

Denise Howell at ZDNet adds her two cents about the controversial international treaty for intellectual property rights enforcement that the U.S. is negotiating with a select group of countries behind closed doors: 

This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner

If the U.S. government's rhetoric about "Internet freedom" is sincere (and there are plenty of cynics who doubt it), it's time to stop sending contradictory, hypocritical messages about policy priorities - saying one thing and then acting in ways that send a rather different kind of message. Otherwise situations like the Microsoft Russia fiasco are just the beginning. It is essential that in the course of protecting intellectual property rights, due process, rule of law, and respect for free expression and privacy must be strengthened instead of eroded. Corporations and the trade negotiators who do their bidding need to understand that eroding democracy abroad and weakening it at home is an unacceptable price to pay for the protection of intellectual property. There has got to be a better and more balanced way forward. Policymakers are going to have to be much more innovative in their approaches to make sure that one policy isn't negating another. Companies need to adapt their business models and business practices not only to the irreversible realities of the Internet age, but also to a global business environment where markets are expanding fastest in places where corruption, thuggery and human rights violations are often the rule instead of the exception. That means taking a much more difficult, uncharted path forward. But the alternative is simply unacceptable.

UPDATE (9/15): Be sure to read the excellent commentary, Jack-Booted Thugs and Copyright Enforcement, by the EFF's Richard Esguerra. He concludes: 

If the copyright lobby gets their way with the Anti-Counterfeiting Trade Agreement (ACTA) or ifgovernments continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline — "Russia Uses Microsoft to Suppress Dissent" — into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."

This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy — it's necessary to protect human rights and fundamental freedoms worldwide.

Comments

[Jillian C. York]

"If the U.S. government's rhetoric about "Internet freedom" is sincere (and there are plenty of cynics who doubt it), it's time to stop sending contradictory, hypocritical messages about policy priorities - saying one thing and then acting in ways that send a rather different kind of message."

That exact same paragraph could be applied to the Alec Ross/Jared Cohen Techdel circus as it pertains to Syria (let's bring technologies to Syrians then control which ones they can use!).

[Catherine Fitzpatrick]

Rebecca, you're really skewing this story terribly. Are you, or are you not, for intellectual property rights?! This story should not be an opportunity for American copyleftists to pick up the cudgel to bang away for open source software and rant about "evil Microsoft". That's really going off in left field.

The problem here is not that the "message" about software piracy coming from Microsoft headquarters was stronger than the message about promoting civil society. Not on your life. Study all the documents and coverage of this story, which has gone on for a year carefully (I blogged about it in March; Russians have been raising the cases long before that).

No, it's about absolutely cynical local officials and lawyers hired by Microsoft exploiting this issue of software licensing in absolutely bad faith to attack political enemies or dissidents they don't like. There's no good faith pursuit of software piracy here as those Russians knew perfectly well -- and by the way, it's more than fine to pursue software piracy. No, from the get-go, it's been about a cynical misuse of this readily available "cover story" to harass dissidents -- it's not like a dissident newspaper or an ecology group were among dozens of offices raided that had multiple copies of Windows on their computers; the human rights groups were the only ones in their provincial towns, and the setting was most decidedly not any campaign on actual software piracy.

There's also the related issue of Microsoft Russia's very tame list of NGOs helped by the MSFT free software program. I've challenged that, and urged them to help the kinds of human rights and social justice groups that Microsoft helps in the U.S. and other countries, not just the tame and the safe that the state approves.

I met with a storm of denial and hateful rhetoric when I challenged the way Russia's Microsoft executives were a) hand-picking only very non-controversial or state loyalist groups for the program b) not doing anything about the exploitation of the software issue to harass activists in the provinces.

The U.S. isn't sending hypocritical messages: the Russian government and its controlled local officials and controlled Microsoft representatives are the ones sending the hypocritical messages here. So don't play the moral equivalency game here, or worse, make it seem like the oppressive Russian government is a secondary issue.

The U.S. is right to press for strong global IP protections. That's how entrepreneurs and creators of all kind can protect *their livlihoods*, Rebecca. What's extraordinary how you in the Global Voices movement are constantly undermining IP rights and banging on the USG or corporations for protecting the linkage of IP with commerce that sustains people and countries. Not everyone can afford to be an affluent copyleftist with a university job.

You're also repeating the same tired memes pushed by Cory Doctorow in hysteria about ACTA. First, there's nothing sinister about "negotiating behind closed doors" as all treaties are negotiated in this fashion, including treaties you likely support for disabled rights or protection of minorities. Second, there's nothing evil about protecting copyright, either -- you seem to have a queasiness about copyright, capitalism and commerce that is inexplicable given your supposed political profile as a liberal.

Microsoft Russia was squarely to blame in this incident of harassing dissidents. I and others raised this all year, and none of you were to be found on this issue, until you could wrest some copyleftist agenda out of it after it got international coverage on the times. Microsoft US was indeed slow in responding to Russian activists, but once a serious American reporter asked them about it, they got on the case extremely fast and very effectively.

The problem in Russia isn't that copyright enforcement was pursued, which needs to be done in a climate of rampant piracy. The problem is that it was cynically and brutally used against human rights activists who were not pirates merely as a ploy. The result of this story should be to strengthen both human rights and copyright, not undermine them as you are doing.

[Rebecca MacKinnon]

With all due respect Catherine, to ask me "are you or are you not for intellectual property rights" is like asking me "are you or are you not for national security" or "are you are you not for law enforcement". Sure I am. But they must be pursued in a balanced manner that doesn't overshadow other rights. Copyright is no different in that regard. When any of these things is pursued over-zealously it gets abused as an excuse to trample the rights of innocent people.

[Catherine Fitzpatrick]

No, Rebecca, it's not like that at all, and it's much more specific than "national security", because there are specific copyright laws -- and specific international treaty processes that you specifically bang on and apparently undermine in this post. That's why you need to be asked.

Because you never forthrightly state this until prodded, and even then, it's with caveats and evasions. You never describe the positive vision you have of a world where copyright and commerce are truly linked to the advantage of creators and where it's forthrightly *ok* to sell software.

Balanced manner, not overshadowing other rights? But that hasn't been proven at all -- it's a chimera. You and the Berkman Center and EFF -- which is even more aggressive on this -- constantly *question* the copyrights that exist as if they are "wrong" but you never convincingly explain what is actually "overshadowing". Er, does a musician's copyright get "overshadowed" by a requirement not to copy it and download it for free on your hard drive, Rebecca? Can you *explicitly* line by line tell us what is so "unbalanced" about ACTA, or will you just ideologically denounce it like Cory Doctorow?

Over-zealous? Where? Again, in *this* case, it is NOT, repeat NOT about Microsoft qua Microsoft overzealously campaigning and raiding in Russia through proxies to protect its software. Not at all. That's why your post here is terribly misleading. It's about Kremlin supporters misusing the power that Microsoft has given to represent them to settle scores with political enemies. It's using the software piracy issue as a wedge in another game. It's not like Microsoft executives gave the orders to run raids in Moscow. Instead, they have a program to support NGOs with free or discounted software, and the Microsoft Russia version of this was very toothless. Worse, the Microsoft-empowered laywers got into league with abusive local officials to misuse the power of office to get rid of dissidents. They didn't even bother to make it look realistic by really prosecuting actual hackers and crackers.

The rights of innocent people here were trampled on NOT because of Microsoft's *rightful* claim to their copyright, Rebecca. Can you *affirm that rightful claim* or not?! The rights were trampled because of the cynical and abusive misuse of this issue in ways that obviously showed it had nothing to do with *really* pursuing copyright at all. They didn't make a raid on a warehouse with thousands of pirated CDs and swoop down on a lot of poor innocent youth. They made targeted searches of an independent newspaper and an ecological group that didn't have any significant number of copies of Word. Please.

It's really irresponsible to use this story to push the copyleftist agenda, which you are doing, even if you try to create the impression you are merely thoughtfully looking for "balance".

What's the balance you feel is needed against Microsoft selling software for money, with a license?