CCIA shares with the open source community a profound commitment to balanced intellectual property policy. We recognize the rights of all stakeholders including producers, users, researchers, and competitors. The intersection of competition and intellectual property is at the core of our policy focus.

Among the earliest of CCIA’s (then the “Computer Industry Association”) activities were legal actions we took to open key computing interfaces in the 1970s – actions which broke an existing computing monopoly and established full competition in the hardware market for the first time in history. Likewise, AT&T – another early target of CCIA’s activity – built an entirely closed network in part because its communications monopoly ensured that no one else could connect to it. Our objections to this closed architecture helped form the basis of the government’s action to break up the Bell System.

The early expertise we gained in network effects led to our participation as amicus in Sega Enterprises, Ltd v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). The court's decision upholding the right to reverse engineer for purposes of interoperability lies at the heart of open source development today. We argued the same point again as amicus in the more recent Sony Computer Entertainment, Inc. v. Connectix Corp, 203 F.3d 596 (9th Cir. 2000), and again emerged on the winning side.

Our spirited opposition to the anticompetitive, anticonsumer provisions of the Digital Millennium Copyright Act (DMCA) further aligns us with the open source community. Obviously, there are a number of flaws in the approach to copyright protection taken in the DMCA, and the law properly has come under great criticism. However, through the efforts of CCIA and others, the statute does include some limited safe harbors that protect those who circumvent copy-protection technology for legitimate purposes. Had we not been successful in obtaining these concessions, open source would be in much worse shape than it is today.

The battle over the DMCA continues in the courts. Here, too, we have done work of interest to open source supporters, most recently on behalf of defendants in the Lexmark vs. Static Control case (see www.ccianet.org/legal/lexmark_amicus.pdf). Lexmark seeks to use a strained interpretation of the DMCA to crush competition. The company is suing Static Control to keep it from producing replacement toner cartridges that can be used with Lexmark printers. Lexmark asserts that Static Control violated the DMCA’s anti-circumvention language, since it apparently reverse engineered Lexmark authentication technology in order to produce a toner cartridge that would run in Lexmark printers. The applicability of this case to open source developers should be obvious. We also followed up our amicus in this case with a filing with the Copyright Office. ( http://www.ccianet.org/legal/scc_comment.pdf). Our comments support additional exceptions to DMCA anticircumvention restrictions proposed by Static Control. A victory here will further buttress developers’ rights.

A number of online content services require customers to use specific codecs, media players and proprietary tools when they access music, video or other works online. Such constraints not only shut open source applications out of the market, but in some cases make criminals out of those who might use them, as seen in the Corley case decided in federal court last year. CCIA has also petitioned the Copyright Office to grant exemption for circumvention of protections that require the use of proprietary media applications.

CCIA’s recommended approach to cybersecurity issues has likewise involved promotion of open source. Among other things, we have urged the administration to make greater use of open source software in its efforts to secure the nation’s computer networks. Our comments on the National Strategy to Secure Cyberspace included a large dose of open source advocacy, which, fortunately, made its way into the final document.

CCIA has also played a strong role in international matters that affect open source, from the negotiations of the WIPO treaties on copyright to the Cybercrime treaty at the Council of Europe. We have been instrumental in the ongoing Microsoft antitrust investigation in Europe, and launched our own antitrust suit at the European Commission earlier this year. CCIA has urged the U.S. Trade Representative to oppose language in the Free Trade Area of the Americas treaty that would grant copyright-like protections to mere facts contained within databases. We have insisted that DMCA-like protections in free trade agreements include the same exemptions for research and reverse engineering present in the DMCA. We have also urged the U.S. delegation to clarify language in the treaty that could be read to suggest that nations should mandate specific technologies for digital rights management.

Our recent establishment of offices in London, Brussels and Ottawa will increase our ability to respond to international threats and opportunities.

Creating the Alliance

The Open Source And Industry Alliance is a fully independent subsidiary of CCIA. CCIA’s existing presence helps the Alliance avoid many critical problems that typically face a new organization, including lack of visibility, logistical difficulties and inadequate staffing and resources. CCIA is well known to Members of Congress, Hill staff, the Administration, and Federal and State agencies, as are our positions on most issues affecting the technology and telecommunications industry. However, we will make clear that members of OSAIA, unless also members of CCIA, should not be presumed, by virtue of being in OSAIA, to endorse or support CCIA positions.