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.
