On September 13, Microsoft Corporation announced a major change in policy whereby the company will make a new unilateral software license available to NGOs and certain journalist organizations in Russia.
Microsoft’s announcement came shortly after The New York Times published a front-page article stating that Microsoft’s local counsel had provided assistance to Russian authorities in the criminal prosecution of NGOs and independent journalists on the basis of allegations that these groups were utilizing pirated Microsoft software. Although software piracy is a serious problem across Russia, Russian authorities allegedly targeted journalists and advocacy groups for criminal prosecution. This is not surprising, given ongoing reports that journalists and advocacy groups in Russia are subject to increasing and often violent government repression.
Microsoft’s announcement indicated that the software license would be granted to organizations in a "number of countries" in addition to Russia, but did not name the other countries specifically. The license will apply automatically, and the company stated that the terms of the license will "fully exonerate" any qualifying organization that is investigated for software piracy. The license will be valid until 2012 (with the possibility for extension). Between now and the expiration of the unilateral license, Microsoft stated that it will work to inform NGOs of an existing donation program whereby NGOs can obtain certain Microsoft software licenses free of charge.
Many technology companies are struggling with the ways in which their products can be used to violate human rights. In Microsoft’s case, it was not the company’s technology that was used to curb lawful dissent, but rather the selective enforcement of intellectual property laws — laws that undeniably protect property rights in which the company has a clear interest. This situation presents complex legal and political challenges, and Microsoft announced that it will retain international legal counsel to conduct an investigation and recommend measures the company should take in the future. Microsoft noted that "we aim to reduce the piracy and counterfeiting of software…in a manner that respects fundamental human rights" and observed that:
we want to be clear that we unequivocally abhor any attempt to leverage intellectual property rights to stifle political advocacy or pursue improper personal gain. We are moving swiftly to seek to remove any incentive or ability to engage in such behavior…We must accept responsibility and assume accountability for our anti-piracy work, including the good and the bad.
What are the wider lessons from Microsoft’s experience? Ideally, Microsoft should have been able to preemptively address this problem before it appeared on the front page of a major newspaper. The company’s announcement described meetings of internal counsel to assess the issues raised by The New York Times, but these issues were apparent before journalists chose to highlight them.
In an open letter to the company published on September 14, Human Rights First suggests that Microsoft should engage in a dialogue with civil society groups in Russia about the use of technology for political repression. Whether Microsoft engages in a formal or informal dialogues, Microsoft — and its peers — should consistently hold discussions with civil society so that new techniques aimed at suppressing potential dissent are identified and addressed. Because these topics are politically sensitive, high-level company managers need to be aware of the concerns at stake and should lead the process of addressing them. Notably, Microsoft is a participant in the Global Network Initiative, a multi-stakeholder initiative working to assist information and communications technology companies protect the human rights of freedom of expression and privacy. These types of multi-stakeholder forums can be very useful to companies, but only if the lessons learned in these engagements are both communicated to top management and implemented on the ground.