After I first wrote about the removal of Free Software from the Vienna Conclusions and their replacement by a statement in favor of Digital Restrictions Management (DRM) in my blog under the title "The Vienna Conclusion: Sponsorship+Politics=Influence" on Wed, 16 November 2005, it found a lot of echo throughout the past two weeks. As the number of articles is becoming increasingly unparsable, PJ asked me to do a little writeup of the entire story and add a bit of background. It'll be my pleasure.

Before the Conference: To Go or Not to Go?

My first contact with the "UN WSIS Contributory Conference on ICT & Creativity" June 2-3 2005 in Vienna was the invitation to the "Digital Rights/Creative Commons" workshop I received by email on Monday, 14 Feb 2005. That was rather unfortunate timing as I had entered a paper to the world's coolest Free Software conference, the 6th Free Software Forum (FISL) in Porto Alegre, Brazil around the end of January.

So I felt obliged to at least give the Free Software Forum organizers a chance to respond before withdrawing, but response did not come until Wed, 30 Mar 2005 by which time I already had to make a decision about going to the UN WSIS contributory conference.

Several reasons influenced that decision: a) the remote possibility to make people on a high political level understand the significance of freedom in software as a social regulator, b) the possibility of proactively working on a good document that could serve as a point of reference and orientation in the United Nations system, and c) the very high level of participants from various UN agencies and states, and the political weight this could give to the outcome of the conference.

Given that none of this would end up being a treaty, or in any way binding to anyone, this may not seem so much, but that would be understimating the power of symbols and consensus on which the United Nations largely rest: Good accounts have been given on how the unenforceability of human rights does not make their Universal Declaration useless.

So what the Vienna Declarations offered was a chance to build a very high-level vision and common understanding of the digital society in a forum much less unwieldy than the general assembly of the 191 Member States of the United Nations. This understanding could then later find its way into other fora, other agencies and eventually even treaty language in one form or another.

So in short: We came to the conclusion that it would be important for the Free Software Foundation Europe to participate to the conference. Matthias Kirschner then asked the organizers to provide another invitation to the reception in the federal chancellery of Austria in order to allow for Karin "kyrah" Kosina, FSFE's Vienna-based representative, to join me for this pre-conference meeting.

Aside from recommending John Perry Barlow to speak from a critical artists' point of view and working out the details of travel planning, this concludes all pre-conference contact with the Vienna Declaration.

During the Conference: Finding Common Language

The conference itself was very much as expected, many speeches, many discussions, many conversations in small groups, giving some interviews.

My focus was of course the workshop on "Digital Rights/Creative Commons" with Richard Owens (Director of Copyright E-Commerce, Technology and Management Division, WIPO), Georg Pleger (Creative Commons Austria), Peter Rantasa (Managing Director, Music Information Center Austria) and myself in the panel, chaired by Nii Narku Quaynor (Chairman and CEO, Network Computer Systems Limited, Republic of Ghana).

After initial short presentations of each of the panelists to highlight their perspective on the issues, the discussion was opened to the people in the audience. According to my memory there were between 60 and 100 people present.

Mr. Richard Owens participated in his official capacity representing the United Nations World Intellectual Property Organization (WIPO), which is remarkably unknown given its role: it is one of 16 specialised agencies of the United Nations and administrates no less than 23 international treaties dealing with different aspects of limited monopolies, such as Copyright, Patents, Trademarks.

If you look at the panel composition alone and then take into account the 60 to 100 people in the audience, it should come as no surprise that the views expressed were quite divergent at times.

Collating the most significant points into a common text that all sides can agree to is the role of the rapporteur, in this case Ralf Bendrath, Chief Editor of the web sites worldsummit2003.org and worldsummit2005.org, who follows and documents the WSIS on behalf of the Heinrich Böll Foundation.

After receiving a first draft prepared by Ralf Bendrath that same day, all panelists gave their comments on the grounds of which a second draft was prepared. That draft was then accepted consensually by all the panelists as well as the chair and forwarded to Professor Peter Bruck, the chair of the conference.

At the closing session of the conference, all output from all the 10 workshops was then assembled under the chapeau that Prof. Peter Bruck had provided prior to the conference with a Drafting Committee, and which later saw some modifications based on recommendations from conference participants.

That process may have been unusual, as the chapeau is usually the last thing to be drafted, and drafted collaboratively, but there are no written rules as to how this has to be done, and ultimately it is a decision of the chair.

Prof. Peter Bruck also emphasised that the entire document, like the chapeau, should be a "living document" and "work in progress", but it was not clear what he meant by that: No participant of my workshop had been involved in the drafting prior to the conference, no participant had received instructions or information as to how the process would continue. For that matter: I asked several people at the conference, they all said they were in the same situation.

As it turned out, I also received no information after the conference, nor were the specific comments and/or changes brought to the attention of the workshop participants.

So Where Was Microsoft in All This?

I did not talk to anyone from Microsoft throughout the entire conference. In fact, I did not even consciously see anyone from Microsoft, other than their listing in the program for a very central keynote as one of the main sponsors of the conference and their logos all over the place.

Despite my expectations, they did not show up in our workshop, neither did IFPI or any other organisation you'd expect to participate in this forum.

It is not that I necessarily looked forward to getting into a public argument with them, but I was ready for it: I am convinced that we have the better answers and reasoning on our side. We should not fear to have others challenge them. In fact, I believe that critically reexamining our arguments is important: How else would we find out where we might be wrong or where better answers exist?

But Microsoft chose not to participate in the workshop and not to discuss their arguments in public.

Indeed I was told by not just one, but several of the organizers in a private and confidential way that Microsoft had protested against my speaking at the conference to the point of actually threatening to leave the conference if I spoke. However that may be, this was the last I heard from the Vienna Conclusions up to the summit in Tunis.

At the WSIS in Tunis

During the World Summit on the Information Society (WSIS) in Tunis, one of my trips brought me to the Austrian booth in order to pick up some copies of the Vienna Conclusions to spread and advertise. When flipping through the text, I was quite shocked to find references to Free Software removed and a pro-DRM statement inserted in the findings of the "Digital Rights/Creative Commons" workshop ("To ensure ongoing innovation, Digital Rights Management (DRM) development and deployment must remain voluntary and market-driven."). Also, references to the cultural and social significance of software as "digital cultural technique" were watered down.

After posting my initial blog entry, I sought out Ralf Bendrath to discuss the situation. Like me, he was outraged: Secretly modifying agreed-upon language is a breach of all United Nations ground rules and procedures. And in this case, a text that had the official acceptance of the UN WIPO agency had been modified without anyone's knowledge or consent.

This is seriously misrepresenting the outcome of the workshop, which did for instance discuss Digital Restriction Management (DRM), but was to the largest part highly critical of it because of the dangers it presents to human rights and in particular freedom of speech.

Ralf Bendrath and I immediately sought out the Austrian booth, but Prof. Peter Bruck was nowhere to be found, and the "World Summit Award" (WSA) celebration of the Vienna Conclusions was about to begin. So we did not manage to confront him directly.

Several media picked up the story a few days later, though.

Pressure by the Media: Justification Attempts

The response to the first article about the subject by the Austrian Broadcasting Company ORF was a comment by Prof. Peter Bruck in which he claimed that the text had been discussed after the conference in a public blog.

As this was the first time I heard of this blogs existence, I was curious and visited it: In the course of three months, there were exactly five entries, two of which procedural, and one to another issue. Of the remaining two, one was by an Austrian parliamentarian who is (according to the media) also a member of IFPI and owns a PR company that appears to be commercially linked to IFPI as well as Microsoft, making the pro-DRM statement.

The other one was by Microsoft, three days before the blog was to be officially closed according to the procedural notes published on the blog. In this posting, Microsoft basically denies the existence of a multi-billion dollar Free Software industry and feels that the internet is not enough of a success story to consider Free Software a successful model. I apologise for what seems like irony, but it is hard to summarise their statement without sounding ironic.

For your comparison: When WIPO held its public online forum on similar issues from June 1 to 15, 2005 which they hardly advertised, at all, they received 52,000 visits and 374 comments. This is 374 comments in 2 weeks compared to 2 comments in 3 months.

These two comments on "Digital Rights/Creative Commons" were both by extreme pro-monopoly advocates who happened to be either sponsoring the event (Mr. Lutz, Microsoft) or themselves involved in its drafting committee (Ms. Felzmann, Cox Orange).

Indeed, it seemed that at no point were the participants informed about the existence or location of the blog, nor were they informed about changes in the text they submitted. Mr. Nii Narku Quaynor also confirmed by email that while he was supposedly chairing this workshop, he had no idea of the modifications or the process.

Current Situation

Ms. Felzmann made an official statement early on in which she defended the methodology of the drafting process, pointed out that she got no money from Microsoft, and also did not represent the interests of the industry.

Around this time, FSFE's media coordinator, Joachim Jakobs, found her PR company doing the "Creative and Press Care" for a Microsoft co-sponsored conference on digital education for children with the obligatory Microsoft keynote, which of course avoided touching on the issue of Free Software in any form. After a short email exchange, I did not hear from her again.

Prof. Peter Bruck was essentially silent for the first two weeks, only Mr. Lutz in the name of Microsoft was busy telling journalists that:

"The Vienna Conclusions document was created through a democratic
feedback process as requested by the committee and stated on the
committee blog. Each and every participant of the conference was
invited to publish contributions, share feedback and offer changes
which facilitated discussion and an open exchange of positions."

On Wednesday, 30 November 2005, Prof. Bruck finally broke his silence to present what he considered proof that all the things that had been said and written about the manipulations on the Vienna Declaration were false accusations: a PDF accumulation of seven emails, some of which had been edited to remove the email addresses or anonymise the names. According to the accompanying notes by Prof. Bruck, one of these went to all conference participants on 24 August 2005, containing the URL of the conference blog. One anonymised reply is attached to support that the mail actually went out, so is a brief exchange with Ralf Bendrath on 19 September 2005, showing that Ralf Bendrath apparently didn't know about the blog at the time.

As to myself, I am in the habit of archiving all my incoming and outgoing mail, and could not find this email, nor did any mail in my archives before November 2005 contain the URL of the blog. Since none of the mails were signed, and only made available in PDF with incomplete headers, anyone could only speculate why that mail never reached me.

In any case: a single email containing a URL is an extremely weak link in the age of spam and spam countermeasures, especially when dealing with people who receive 1000+ spam attempts and 400+ emails a day.

Choosing a blog for such a discussion is also a very odd decision for someone knowledgeable in digital media. Why not use email, which is the medium that everyone is sure to see and already uses centrally in their daily work? A public mailing list with public archives to which all conference participants are being subscribed at the conference would have seemed much more natural, simple and transparent.

Process Evaluation

Prof. Bruck and Mr. Lutz both strongly defend the process as open, transparent and democratic. Also, Prof. Bruck makes strong statements about the relativism of opinion with regard to the statements by Microsoft, while Mr. Lutz valiantly defends the process in public.

That is hardly surprising, as Microsoft defends a process that they should bear no formal responsibility for and Prof. Bruck gives weight to a Microsoft PR statement that was free from factual arguments and easily disproven.

As to their claims: In order to speak of a transparent process, I would have expected the organisers of the conference to define and make public the procedural rules and in particular the decision procedures before the conference: these should have been put on a web page, sent to the conference participants by email a week before the conference, and also have been added on paper to the conference papers of the conference participants.

The way the blog URL was publicised does not really appear suitable to ensure an open and transparent process. Setting up the process to depend on extremely busy experts to check back every day to an empty blog whether finally someone posted something substantive definitely is not open.

If a blog is used, one could expect email to be sent to all participants of a workshop whenever something substantive is posted about their issues. This did not happen. Blog or no, participants were not informed of the comments, were not involved in the discussion on how to incorporate them, and were not informed of the final version, nor were they given chance to comment on it.

Absolute control of the final document lay with the drafting committee, which chose to follow the requests by Microsoft and IFPI entirely. Indeed, Ms. Felzmann as part of the drafting committee and member of IFPI thus got to decide on the inclusion of her own pro-DRM statements.

No part of the work of the drafting committee was made transparent, no reasoning for decisions given, no discussion visible. And the drafting committee was also not elected.

This is clearly not what I would consider an open, transparent and democratic process. Indeed the rules seemed rather flexible. Although the blog was to be closed officially on 30 September 2005, according to the dating on the blog, the pro-DRM comments were made on 5 October 2005 and then quickly inserted in the Vienna Conclusions.

Media Backlash?

According to some journalists I exchanged email with or spoke to, Mr. Lutz and Prof. Bruck are both putting extreme pressure on the media to the point of threatening them with lawsuits. Given the history of Microsoft PR, and considering that the most recent and most central headline on the home page of Prof. Bruck is a legal battle with a newspaper from 1989 until 2002, this does not seem entirely implausible.

So maybe some media will soon stop reporting about this, or start repeating the statements by Mr. Lutz that "it was only about not giving a one-sided impression of the industry" -- although the original statement explicitly said that both old and new models would coexist for the forseeable future and it was only Free Software that was removed -- or Prof. Bruck that there was no objective truth to the existance of a multi-billion USD Free Software industry.

In fact, Microsoft still seems to avoid the discussion. When asked whether I would be willing to do a side-by-side interview with Mr. Lutz and Prof. Bruck, I immediately agreed. For whatever reason this never happened, though.

What Now?

Whether any consequences will follow for any of the involved parties is unclear, but it is clear that without these manipulations, the Vienna Conclusions could (and would) have been a very useful contribution to the global dialog about the digital society.

Now they mainly serve as an example of the current power structures and their methods. As that, they are again useful, but only if we make this incident widely known and use it to explain what kind of politics we do not want and to have an example for the political influence Microsoft exerts to maintain its monopoly.

As for the Vienna Conclusions themselves: It would be good if the document were to be restored to its original state, and published again by the Austrian government. It would be better if the Austrian government were to commit to a followup that would be organised by a mixed team, involving people from all sides.

It is not the dialog we fear, but we reject an unequal playing ground on which the rules are set in a way that all outcomes will always be biased against Free Software.

Background Links

In case you wish to read the original sources and follow the events unfolding, here is a complete link list of the blog entries:

• 16 November 2005: The Vienna Conclusion: Sponsorship+Politics=Influence
• 22 November 2005: The next Vienna Conclusion: So it WAS Microsoft that asked to delete Free Software
• 22 November 2005: And the prize for DRM promotion goes to...
• 23 November 2005: Vienna manipulations in the press
• 25 November 2005: More news about the Vienna Manipulations
• 25 November 2005: Microsofts implementation of democracy
• 29 November 2005: Vienna Manipulations update: Microsoft unhappy about reality
• 1 December 2005: Vienna Manipulations: it gets ever more interesting