Hi all,
currently we are working on a brochure for our Public Money? Public Code! campaign, that we like to use as a help for politicians and decision-takers. The brochure shall help to clarify common misunderstandings about Free Software, show positive use-cases and of course the multiple benefits of using Free Software. Aim is that the reader gets a broad picture and positive understanding as well as valid arguments why to prefer using Free Software in public administrations. Size will be around 16 to 24 pages.
One of these pages shall be dedicated to the topic "market distortion / anticompetition". The point is that a main argument against publishing publicly financed software developments under a free licence is said to be "market distortion". The argument says that private actors cannot compete against "software offered by the state free of charge" and therewith these publications are to be seen anticompetitive. On the other hand we use to argue that in fact Free Software fosters competition because there are a way less dependencies in the Free Software and Open Standards world.
However, we find the similar argumentations ("private actors cannot compete with services offered by the state free of charge") in a lot of industries. For example when private media competes with public-service broadcasting. That is why in Germany they introduced a law to "depublish" publicly financed news-pages after seven days up to one year (seriously).
Last week I met an IT manager from BBC who told me that his team tries since a while to publish their developments under free licences. However, they are not allowed to do so because of the arguments brought up above. In Switzerland in contrary the same arguments led to some years of legal uncertainty around Open Justitia, but finally the court allowed the Kanton Bern to publish publicly financed self-developed software under a free license.
Now my questions: * How can we oppose the argument that publicly financed software released as Free Software is anticompetitive?
* What can we bring up on the other hand in favor of publishing as Free Software from a competitive point of view? (except the usual non-dependencies)
* What other arguments can be made in that context to balance an even anticompetitive decision pro Free Software (like public duty to supply, binding public money with public goods etc)?
* Are there more examples in Europe in that - like in Switzerland - national courts decided in favor of publishing publicly financed software as Free Software?
Looking forward to your input
Best regards, Erik
Le 21/06/2018 à 14:33, Erik Albers a écrit :
- How can we oppose the argument that publicly financed software released as
Free Software is anticompetitive?
Hi, I prefer a colaborative world to a competive one. At some point, defending alternatives such as free software in such a sucking society needs too much(for me) compromising and work...
It's like when I was working in a public cyberespace, I couldn't claim I too much I was teaching things to people because it would have been unfair with enterprises...
Good luck for you and all of those who still think that things can change without a major collapse
On Thursday 21. June 2018 14.33.21 Erik Albers wrote:
One of these pages shall be dedicated to the topic "market distortion / anticompetition". The point is that a main argument against publishing publicly financed software developments under a free licence is said to be "market distortion". The argument says that private actors cannot compete against "software offered by the state free of charge" and therewith these publications are to be seen anticompetitive. On the other hand we use to argue that in fact Free Software fosters competition because there are a way less dependencies in the Free Software and Open Standards world.
First of all, Free Software does not necessarily mean "free of charge". There is no reason why anyone cannot sell Free Software to public organisations. The difference between doing this and selling proprietary software is, of course, that the latter puts the public organisation under the control of the software supplier, whereas Free Software puts the public organisation in control.
There are very good reasons why we would want public organisations to exercise control over their software, many of them the same as those indicating why we ourselves wish to have such control. A particularly good one applying to state institutions relates to the longevity of systems and data.
One would like to be able to retain the ability to access old and archived data without losing such capabilities because a supplier has decided that it is not a priority for them. Unlike individual needs in this respect, there may be legal requirements applying to branches of the state.
However, we find the similar argumentations ("private actors cannot compete with services offered by the state free of charge") in a lot of industries. For example when private media competes with public-service broadcasting. That is why in Germany they introduced a law to "depublish" publicly financed news-pages after seven days up to one year (seriously).
It is a common phenomenon that in sectors where public services supposedly compete with private companies, those companies will complain about state- funded competition whilst taking full advantage of all the free things those public services produce. Another area where this occurs is in weather forecasting and monitoring. I am sure others can provide examples of their own.
Last week I met an IT manager from BBC who told me that his team tries since a while to publish their developments under free licences. However, they are not allowed to do so because of the arguments brought up above. In Switzerland in contrary the same arguments led to some years of legal uncertainty around Open Justitia, but finally the court allowed the Kanton Bern to publish publicly financed self-developed software under a free license.
The BBC is a bit special because it has become some kind of state/private hybrid with extensive commercial interests. This arrangement happens to suit various parties - managers, production companies, suppliers, politicians - and it would be interesting to know how the money flows, albeit challenging to find out because the organisation is notoriously resistant to honouring freedom of information requests, or so I have heard.
Either way, the BBC provides an interesting example of the "having it both ways" philosophy that motivates demands for expanded "commercial" involvement. Television viewers are effectively taxed, thus providing a large pot of money for opportunists to access. Companies have presumably lobbied to make that pot of money more accessible to them. They will undoubtedly feel that the role of the organisation is to distribute this money and not to do any worthwhile work internally.
(Despite being taxed, viewers also do not seem to have any rights to the things they are funding. The usual excuse is that the BBC has to license content to other markets - including selling things to the taxpaying viewers - to make up for a funding deficit and that the viewers do not collectively cover all of the organisation's costs. No-one considers that an alternative, fairer, more sustainable model might work.)
Now my questions:
- How can we oppose the argument that publicly financed software released
as Free Software is anticompetitive?
By noting that suppliers could provide Free Software to public organisations. This would still be publicly-financed software. The issue of public organisations producing and releasing Free Software themselves is a separate one. Some might claim that such organisations should not be in the business of producing software, but that is just an opinion, not a statement of indisputable fact.
- What can we bring up on the other hand in favor of publishing as Free
Software from a competitive point of view? (except the usual non-dependencies)
I would start with the issue of control. Public organisations can waste a lot of money on projects because they have neither control over the projects nor control over the software to be delivered. Developing and consuming Free Software helps re-establish this control.
It could then be noted that by publishing Free Software, organisations make themselves more available for collaboration, and this might then lead to opportunities for those willing to provide services enhancing this software, either for the organisation concerned or for others.
Particularly when opportunities are made elsewhere, Free Software development and publication can be regarded as a form of "technology transfer", albeit one that is transparent and fair, as opposed to the usual form that gets advocated where "spin-off" companies are created, "intellectual property" is licensed in a restrictive way, and one gets the impression that the aim of the exercise is to privatise publicly-funded work and to try and make a few well-connected people wealthy.
I'll leave the other questions for now.
Paul
On 21/06/2018 14:33, Erik Albers wrote:
Hi all,
currently we are working on a brochure for our Public Money? Public Code! campaign, that we like to use as a help for politicians and decision-takers. The brochure shall help to clarify common misunderstandings about Free Software, show positive use-cases and of course the multiple benefits of using Free Software. Aim is that the reader gets a broad picture and positive understanding as well as valid arguments why to prefer using Free Software in public administrations. Size will be around 16 to 24 pages.
[...]
- Are there more examples in Europe in that - like in Switzerland - national
courts decided in favor of publishing publicly financed software as Free Software?
In Italy the new Article 69 comma 2 of CAD (Digital Administration Code) along with the Software Selection and Software Reuse Guidelines (that has been under public consultation all May, we've participated as Hermes Center) officially released by Team for Digital Transformation / Agid (Agency for Digitalization) do require each public agency to:
- Follow strict selection procedures with favor on opensource - Follow strict selection procedures that require to use "officially in re-use software" - Follow strict procedures to contribute to third party opensource software when making a tender for sw development based on OSS
Guidelines are italian on http://lg-acquisizione-e-riuso-software-per-la-pa.readthedocs.io/it/latest/ with google translate does a decent translation job.
There's no direct sanctioning systems for violations of those rules, but watchdogs (like us, italian linux society or others NGOs) can goes to the "court of accounts" that investigate damages to public accounts in case there was a public software project that didn't followed those guidelines causing a loss of money for the public treasury.
I think that a brochure should explicitly underline the French, Swiss and Italian legal frameworks, i don't know of anyone else, with a list of claims of virtuous legislation and practices by big European countries on those topic, because the "by example" approach works very well with policy makers and managers.
Fabio Pietrosanti
Hi,
Le 21-06-2018 14:33, Erik Albers a écrit :
Now my questions:
- How can we oppose the argument that publicly financed software
released as Free Software is anticompetitive?
- What can we bring up on the other hand in favor of publishing as
Free Software from a competitive point of view? (except the usual non-dependencies)
They are asking to assure that people pay multiple times for the same work. This is not a question of competition but of getting a rent on something you have already being paid to do. And yes whenever a publicly financed software is released, it breaks some sort of undue windfall economy. It is not a problem, it is a feature.
The anticompetitiveness is the fact that proprietary software does not allow all IT company to compete for providing support or new features. This is what Free Software assures. It is thus the opposite of anticompetitive.
Best,
Thanks Cryptie (and Carsten) for the reply.
- What can we bring up on the other hand in favor of publishing as Free Software from a competitive point of view?
They are asking to assure that people pay multiple times for the same work. This is not a question of competition but of getting a rent on something you have already being paid to do.
That's very true. OTOH this is usually rejected by the other party with an argument of "the development cost is split among many copies". If this were true, the price would drop abruptly after the package is successful, but nobody understands this. So it really is an undue lifetime rent, but the message is not easily conveyed.
The anticompetitiveness is the fact that proprietary software does not allow all IT company to compete for providing support or new features. This is what Free Software assures. It is thus the opposite of anticompetitive.
Right. Maybe a strong point would be that while we agree that the proprietary approach is competitive at the outset (where several company may compete for the tender according to features/price) it fails miserably in the long run when the usual lock-in practices turn the system into a monopoly. A free approach is competitive at the outset, where features and price can be compared like above; and it remains competitive in the long run where support/enhancment/migration can be offered by any competent player.
One easier point to be made is the requirement for careful evaluation of the exit costs of any solution proposed in a public tender; lock-in practices (or just migration costs) are a reality, so an administration must evaluate them before being stuck forever with a greedy or unreliable provider. This is an argument that proprietary lobbyists strongly oppose, in my experience, because they have have no counter arguments. They rather work hard to silence it altogether.
/alessandro
On 06/21/2018 02:33 PM, Erik Albers wrote:
- How can we oppose the argument that publicly financed software released as
Free Software is anticompetitive? '
From a Danish perspective, the notion of free software as anticompetitive is completely ridiculous. The Danish public IT infrastructure is completely dominated by two HUGE American-owned companies, KMD (once owned jointly by the municipalities, now sold off to Advent International) and CSC (now DXC Technology).
They oversee non-interoperable monolithic systems, many based on a legacy infrastructure dating back to 80s mainframe programs, which are of course proprietary - all interaction with these companies cost the municipalities and the government huge amount of money, but on the bright side they are tied hand and foot to these vendors - until very recently, these companies were practically speaking the only owners of public data in Denmark (not even joking - through the CPR system, KMD for years charged the municipalities about € 0.33 per pop for accessing *their own* citizen records - which created a use case for my company's free software product "CPR Broker" which caches these records. The rest of the market is owned by a few other big players, Microsoft Windows on all desktops and nearly all servers, Microsoft AD for identity management and ADFS for federation, and a few other large proprietary vendors such as SD Løn for salaries processing.
The reality is that within this ecosystem there's *no* real competition, there's only monopolies and complete lock-in ("oh you want us to integrate to vendor X, even though we can provide product Y at double the price. Yes, we can do that - just wait one moment while I calculate the price ... oh, pity! Looks like you're not going to be saving any money.")
In the case of free software, "open source" as they consistently call it, the public authorities order what they get from an independent vendor and are at any point free to take the code and go to another vendor.
And there is, in fact, a small but burgeoning sector of free software vendors, some more commited than others, but delivering e.g. through the OS2 collaboration which I mentioned in a previous mail: https://os2.eu/node/332
Between these vendors there's real competition, as we can in fact can and do sell each other's products. And by introducing open standards and co-funding, we're in fact very slowly getting into the creation of free and municipality-funded competitors to the monoliths. But that this should be *impeding* or preventing competition is risible - as I said, this very new development is *introducing* competition where previously there was none.
- What can we bring up on the other hand in favor of publishing as Free
Software from a competitive point of view? (except the usual non-dependencies)
I think I covered that in the above.
- What other arguments can be made in that context to balance an even
anticompetitive decision pro Free Software (like public duty to supply, binding public money with public goods etc)?
Open standards; loosely couple integrations, i.e. in an infrastructure with N systems you don't have to make N*(N-1) integrations between proprietary systems, you can make N integrations to open standards and find a common way for them to communicate.
In fact, the Danish association of municipalities (KL) formulated such a protocol, based on AMQP and the Danish OIO standards for public data, and called it MOX and later commissioned my company to make a POC for it - speaking of deployments we're just getting started, but the system can be seen here: https://github.com/magenta-aps/mox/
Best Carsten
Disclosure: I'm working for a company which is dedicated to creating free software and currently serving the Danish public sector and thus not without interest in this question.
- Are there more examples in Europe in that - like in Switzerland - national
courts decided in favor of publishing publicly financed software as Free Software?
Looking forward to your input
Best regards, Erik
Hi Erik,
Now my questions:
- How can we oppose the argument that publicly financed software released as
Free Software is anticompetitive?
I've found the following argument to be somehow convincing.
How do you know that a SaaS (Software as a Service) is not a free software? Well, you probably don't and most customers don't care.
If free softwares should be considered anti-competitive, then free SaaS should be considered anti-competitive too.
But it's not just "free SaaS": any kind of SaaS comes with hidden operational costs which prevents a rational approach of what would be a fair price. (Google Maps prices, for example, were certainly not very fair regarding competition: they first killed the market then increased their price a lot.) When a company deploys free softwares, they are just running a kind of service over some hidden operational costs, that of the free softwares themselves, the difference being that those costs are supported by the free software communities.
- What can we bring up on the other hand in favor of publishing as Free
Software from a competitive point of view? (except the usual non-dependencies)
IT companies deploying free softwares compete on better integration, customization, documentation, support and maintenance, instead of competing on supposedly better closed code.
- What other arguments can be made in that context to balance an even
anticompetitive decision pro Free Software (like public duty to supply, binding public money with public goods etc)?
Not knowing whether prices of commonly used SaaS are fair (like the price of Google services paid by many universities) is to me a big argument -- at least to destroy the naive vision that it's easy to assess the fairness of a price in a closed-source business model.
- Are there more examples in Europe in that - like in Switzerland - national
courts decided in favor of publishing publicly financed software as Free Software?
In France, the law for a Digital Republic from 2016 simply says that publicly-funded software is like publicly-funded data and should be published as free software by default: "open source" is a particular case of open data.
Of course, we're not there yet: administrations have yet to understand free software, free licenses, and publish more code. But we are going in the right direction.
You can also mention the "Open-source contribution policy":
https://disic.github.io/politique-de-contribution-open-source/en/
It basically says that administrations are encouraged to contribute to existing free softwares and that public employees don't need to ask for permission for this, they just need time.
All best,
On Friday 22. June 2018 08.21.00 Bastien wrote:
Not knowing whether prices of commonly used SaaS are fair (like the price of Google services paid by many universities) is to me a big argument -- at least to destroy the naive vision that it's easy to assess the fairness of a price in a closed-source business model.
Sorry to take this discussion in another direction - hence the subject change - but even the costs of traditional proprietary software may not be transparent. A few years ago, I was encouraged to request the licensing contract for Microsoft products at a public institution, and all the pricing information was redacted for reasons of "commercial sensitivity".
So you have a publicly-funded institution paying mystery prices to a proprietary software vendor (via their local reseller in this case) who will presumably be adjusting their prices according to the perceived risk of their customers migrating from their products. And yet you will have people arguing that such activities are not anticompetitive.
Indeed, you will even have people arguing that there is "competition" because different resellers can submit their own offers (and other such nonsense). In the obligatory car analogy for single vendor systems procurement, it would be like someone deciding that only Ford Focus cars are acceptable, insisting that there is "competition" because different dealers can suggest different prices for that one permitted model.
Paul
Hi Paul,
Paul Boddie paul@boddie.org.uk writes:
Sorry to take this discussion in another direction - hence the subject change - but even the costs of traditional proprietary software may not be transparent.
Indeed - thanks for completing my idea.
This helps me draw a new distinction.
My traditional answer about this "unfair competition" argument was to shrug and to reply: "well, free software is not about price".
But lawyers don't buy that. So instead of dismissing the argument, the idea is to show that the notion of "fair competition" itself is not so operational.
2 cts of course,
On 22-06-2018 08:21, Bastien wrote:
But it's not just "free SaaS": any kind of SaaS comes with hidden operational costs which prevents a rational approach of what would be a fair price. (Google Maps prices, for example, were certainly not very fair regarding competition: they first killed the market then increased their price a lot.) When a company deploys free softwares, they are just running a kind of service over some hidden operational costs, that of the free softwares themselves, the difference being that those costs are supported by the free software communities.
That's not actually so different from proprietary software development - much if not most proprietary software is created with extensive use of free software, especially since GNU/Linux systems and Unix tools seem to be preferred by developers. So there's also some cost supported by free sofware communities in the pricing of proprietary software.
On the other hand, a very common use case is that some public authority needs some software to support their business processes - salary payment, finances, recruitment workflows, vocabularies, etc.
Much of this software either doesn't exist yet or doesn't exist as free software, and in that case the price becomes very transparent - the vendor's hourly rate times the development and project management hours needed to finish and deploy the system, plus the monthly cost of a service level agreement with bug fixes etc.
This is of course much more transparent than the typical asking prices for proprietary software. The tricky parts come if a) the vendor decides to sell the first system below cost as an investment in future sales and support contracts, and/or b) the initial estimates are too low because the processes are more complex than assumed by the vendor (or, at times, the client).
But still, if the price is specified on an invoice as number of hours worked it doesn't get much more transparent than that.
Best Carsten
Sorry for the late response. I wasn't going to add anything to this thread but I found a fragment of a discussion from many years ago that talked about the idea of a Free Software product in a monopoly position, referencing this article:
http://www.ifosslr.org/ifosslr/article/view/16/33
The summary of the discussion was the following. One party mentioned that the article suggested a Free Software product might be found to be exclusionary if interoperating with it meant that proprietary software had to comply with the license or stay out of the market. Another party suggested that this was FUD because there was no reason one business model should be favoured over another.
Anyway, it led me to think about these questions because they cover related scenarios but not precisely the one above.
On Thu Jun 21 12:33:21 UTC 2018, Erik Albers wrote:
Now my questions:
- How can we oppose the argument that publicly financed software released as
Free Software is anticompetitive?
In the case where a public institution is selling a piece of software in competition with existing players, perhaps it would be anticompetitive, but only because it is subsidised by the taxpayer not because it is Free Software.
However, the example you gave about the BBC (putting aside the hybrid nature of the BBC's business) indicates to me that the software could be used by companies in some market. There's nothing to stop them from using the software except perhaps for license incompatibility but, unlike in the article above, nobody is forced to use it to stay in the market. The software may well stimulate new development as existing companies take advantage of it and new companies enter the market with products based on it. Perhaps those companies who cannot use the software will develop the same features to improve their products. This sounds like competition to me!
If the new software duplicates an existing product on the market then that's unfortunate. However, nobody has a right to occupy a position in the market. Just because a company occupies a position in a market doesn't mean that anything that competes with them is automatically anticompetitive. Maybe the market is distorted, or there is a monopoly, or perhaps companies had a nice business selling software to the BBC which they now no longer need to buy. ;-)
- What can we bring up on the other hand in favor of publishing as Free
Software from a competitive point of view? (except the usual non-dependencies)
It gives players in a market a platform they can innovate on. It also provides a level playing field for all players to compete on. It doesn't always work like that because some players have more resources than others, but at least there's no barrier to entry or gatekeeper.
David