Sunday Nov 02, 2008

Public Procurement and FOSS


I gave an interview to a journalist last week in response to the research that the European Commission's Open Source Observatory publicised in Malaga last week and the corresponding draft procurement guidelines (thanks to Roberto for the pointers to the Malaga news). I was at the conference but a scheduling conflict prevented me attending IDABC's session, which I regret.

Good News

I very much welcome the guidelines; as I have been saying for well over a year now, the first step to encouraging the use of Free/open source software in the public sphere is to facilitate the adoption-led model in addition to the procurement-driven model, at the very least to the extent of encouraging two-phase procurement. As Rishab pointed out (although not with the same words), there are also the issues of substitutability and the freedom to leave, which I believe it's fundamental for a public administration to consider.

Substitutability guarantees citizens access to government without being forced to trade with a single vendor in order to do so, and the freedom to leave ensures public administrations always have the negotiating power to get the best deal for taxpayers. The guidelines begin to address those issues as well - great news.


The journalist went on to ask me about all the documented procurement violations. It seems that:

Of a sample of 3615 software tenders that were published between January and August this year, 36 percent request Microsoft software, 20 percent ask for Oracle, 12 percent mention IBM applications, 11 percent request SAP and 10 percent are asking for applications made by Adobe.

That's bad enough, and likely illegal in most cases, but then it also turns out:

According to Gosh, software tenders often have either implicit or explicit bias for software brands or even specific applications. Of a thousand government IT organisations, 33 percent said compatibility with previously acquired software is the most important criterion when selecting new applications. Ghosh: "This implicit vendor-lock in means that a tender, meant to last for only five years, leads to a contractual relation lasting ten, fifteen years or more."

Most concerning of all, however, was that despite this all being completely transparent and public, the Commission is doing nothing about it. They regard the problem as being one that the competitors of the favoured companies should address through the courts. That would be fine if the market was largely functional and there were only rare cases of abuse.

But it's not. The improper procurement activity is endemic, and until that's addressed any competitor attempting to act through the courts is likely to find themselves discriminated against even further. It's never good to sue your customers (as the music industry is finding), and in a market where the customers can specify you out of the running with impunity, it's suicidal. Moreover, it can take years for the courts to make a ruling, which means even more lost opportunity for competing companies - assuming they can survive the wait. Until the European Commission takes adequate corrective actions to address this disease, there is no step in the current software market condition that any competitor is likely to take to address it.


Given the scale of the disadvantage already present, why would any player want to make their position worse? In the report of the interview the Commission representative says: "There are sufficient ways for companies and other organisations to protect their rights." He may be right, but they aren't being used by the FOSS community and the reason is that the abuse is too extensive for anyone to want to make the first move.

I'm delighted by the fact the new procurement guidelines exist, but personally I want to see direct action to establish them - it can't be left up to those already disadvantaged. I wonder if anyone has the stomach for it?

Thursday Mar 13, 2008

Open Source for Sovereignty

Parascending in Sydney Harbour

I was interested to see news from the European Commission where they announce a new policy to more frequently use open source software in the administration of the European Union. They say:

For all new development, where deployment and usage is foreseen by parties outside of the Commission Infrastructure, Open Source Software will be the preferred development and deployment platform.

It's not just European government that's opting for open source. Today the NSA (the super-secret spy agency in the US) have announced they are joining in with OpenSolaris. Barton has an interview that explores this more. I think we'll see more and more government engagement as the adoption-led market takes hold.

Using Free software from open source communities makes perfect sense for governments, and not just for the obvious reasons of up-front savings on license fees. As I heard said on behalf of the Brazilian government, open source is a matter of sovereignty. When a government decides to use closed software, they are guaranteeing that they will be sending money out of the local economy. The degree of expatriation depends on the actual system they've chosen. In the worst case, all the money goes to the US, all the resulting assets belong to someone else and all the ongoing service and support costs pay for the development of skills abroad.

By contrast, using Free software has no licensing costs. Any extra programming results in an asset shared by an open source community. All service and support can be handled locally, growing the skill-base and economy. What could be a smarter way for a government to obtain the essential infrastructure it needs and develop the local economy at the same time?

Friday Mar 07, 2008

Responding to the EU on DRM


In response to a request from the European Union concerning DRM and interoperability, Sun has submitted a lengthy written response. Preparing for and reviewing the response with colleagues took me back to my earlier article, DRM and the Death of a Culture. My tendency is always to look for a guiding principle rather than to seek a set of rules, and in this case it's about quantization of discretion. Here's what I wrote:

People talk of "fair use" but what they actually mean is that we all depend on the exercise of judgment in every decision. Near the "bulls-eye" of copyright we're all clear what is what, but as Lessig eloquently explains in Free Culture, in the outer circles we have to make case-by-case judgments about what usage is fair and what usage is abuse. When a technologist embodies their or their employer's view of what's fair into a technology-enforced restriction, any potential for the exercise of discretion is turned from a scale to a step and freedom is quantized.

It strikes me that the inherent quantization of rights is what makes DRM at best undesirable and at worst a guarantee of cultural Alzheimer's. I was thus delighted when a very senior Sun executive insisted that the position paper include the following paragraph:

Before we discuss interoperability in detail, we would like to emphasize this last point. Sun believes that DRM should be a solution only when necessary. DRM should never restrict the user's ability to utilize the content in legally-permissible ways. With this in mind, any DRM system must be open, fully interoperable, and free from hidden IP licensing burdens that effectively re-close the system economically. Indeed, in the spirit of the company that supports, Sun believes that the Commission's stance should enable it to be possible to create a free version of any DRM system used in the EU!

Of course, I am personally among those who believe it is never necessary to apply Digital Restrictions to content, but I'm very pleased that Sun is taking a position that DRM should not be assumed to be automatically a part of the entertainment business.

Sunday Apr 22, 2007

Last Chance on Euro-DMCA

I wrote to my MEPs last week (that's Members of the European Parliament) using the wonderful Write To Them about IPRED2. Here's what I said, in a personal capacity:

Dear Daniel Hannan, Peter Skinner, Ashley Mote, Caroline Lucas, James Elles, Sharon Bowles, Nirj Deva, Richard Ashworth, Nigel Farage and Baroness Nicholson of Winterbourne,

I note that the IPR Enforcement Directive comes to vote soon at the European Parliament. I am very concerned with this legislation and with the chilling effect it is likely to have on the emerging culture and economy of the Internet. By providing established large businesses with a new tool to exploit, we risk the dampening of the innovation that is happening online.

This is an unproven area, and as the US experience with the DMCA shows, unleashing powerful sanctions at the behest of existing businesses results in random abuse rather than its prevention. This directive may have aspects which lobbyists from the drug, software and communications industries can make sound appealing, but it will restrain open source software development in Europe and the pioneering of new European businesses. It is only pro-innovation for those with existing monopolies or near-monopolies.

If this directive had been in place before, Oracle could have crushed MySQL, Microsoft could have crushed and Skype would never have happened. Please vote against it.

Yours sincerely,

Simon Phipps

I said "against" since the e-mail was already long enough without articulating the pros and cons of each proposed amendment - I know they will get the point! So far I have had placeholder responses from Lucas, Bowles and Mote and a real reply from Farage. I've offered to discuss the legislation with any of them that want to contact me direct.

As Glyn and Cory both point out, if you are a citizen of a country that is a member of the EU, today is probably your last chance to beg your representatives not to cave to the unholy alliance of drug, media and software companies that wants to make criminal sanctions available against copyright and patent abusers. It needs to remain a civil matter, and the proposed amendments do their best to keep it that way.

Saturday Mar 24, 2007

Summer in Europe

Quick note to my friends, colleagues and critics in America: Europe has switched to "Daylight Saving Time" (we call it Summer Time here in the UK, so the abbreviation is "BST" for British Summer Time) so we're back on normal time differences again. Please keep on being sensitive to those 8 or 9 hour differences though!

Saturday Mar 10, 2007

Watch Before You Spring


A bright good morning to all my American friends and colleagues, and welcome to Daylight Saving Time. I am delighted for you that your government has decided to start summer before the equinox and wish you every happiness.

However, those of us over here in Europe would like to remind you that we'll not be starting with summer time until after the equinox. That means we're not the usual 8/9 hours away this week, so all those carefully planned meetings we have worked out now fall in all the wrong places. It's going to be messy, and it's going to be messy for two whole weeks, until March 25th, while we are 7 (to UTC) and 8 (to CET) hours apart.

So, on behalf of all of Europe, I'd like to ask you to look carefully at the calendar and make sure everyone invited to those meetings knows when everyone else is expecting to show up. I expect you'll blame us for all the times we aren't there when you're expecting, but remember, it was you that moved - this is your government saving energy and enhancing Halloween, after all.

[Fixed an impossibly stupid error in my first attempt at this posting! Usually the DST switch happens in Europe first so the 9 hr gap happens in spring and the 7 hr gap in autumn, but with the switch moving 3 weeks in the US it's reversed. Saving the first version for Autumn...]

Monday Feb 26, 2007

LiveMink: Freedom Task Force

At FOSDEM last weekend, I met up with Shane Coughlan, a long-time Free software advocate and now full-time staff for the Free Software Foundation Europe. Shane told me all about the new initiative FSFE is starting, the Freedom Task Force, which aims to provide a legal focus for Free software in Europe. Listen on!



Thoughts and pointers on digital freedoms and technology markets. With a few photos too.


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