[clug] Your Best arguments please

Mark Harrison m.harrison at anu.edu.au
Tue Aug 12 13:57:58 EST 2003

What is the question here?

Is OSS legislation really necessary to keep governments running
effectively, or is the system so broken and our representatives and
public servants so beat up that to admit the real problem is too hard a
task? Is OSS legislation a way of saying 'well, the people are getting
screwed – rather than face the real problem, we will try and indirectly
implement the purchasing system we wanted to start with by adding this
new legislation.”

A quote from someone:

As a minimum language such as
"fair and equitable consideration must be give to OSS alternatives in
all purchasing decisions" in clearly necessary.

Why is this necessary? This strongly implies that people are buying
things without adequately testing the market. Your response, rather than
saying 'Hey you – test the market', is to legislate every little piece
of the market one by one. That seems wrong. If the public service is not
doing the right thing, then point out what the right thing is and make
them do it.

There were some other comments along the lines of “nobody ever got fired
for buying MS”. well, why not? If someone repeatedly bought MS when
there was a better product, why do they have a job still? If there are
rules to follow, then why are those who do not follow them not punished?
(as an aside, I have heard rumours of someone in a lotus infested
organisation being fired for buying some MS office stuff. But see my
point on contract length below.)

If, on the other hand, the purpose of passing OSS legislation is to
achieve goals other than the effective running of governments, then,
well, thats equally as dodgy. If Australia is to have IP laws, then it
does not make sense to say that you can only use them in certain ways.
If you think IP is promoting business practices that are not in the
public interest, then change IP law. Remember, the IP laws are there
because they are supposed to support what is in the publics interest –
NOT to protect the interests of any one individual. The idea behind IP
laws is that letting MS make .doc a closed format is in the best
interests of all Australians. Given the way open trade agreements are
going, global treaties say that letting MS make .doc a closed format is
in the best interests of all humanity. If you think a law is broken,
don't layer a new law on top of it, fix the problem at its source.

Now, I am sure there are 2001 'real world' arguments to speak out
against this with. Most of them are quite valid when you accept the
premise of the 'real world'. Question is, are politicians supposed to
accept a real world and work around it, or are they supposed to redefine
it in your interests? I think the real point here is that people are
becoming dissatisfied with current IP laws. Governments created them –
do we want Governments to change them?

Regardless, the following are some random thoughts about stuff. Some of
it has probably been covered already.

What governments should want.

Government purchasing should not effectively bind the government beyond
the term of the contract.
If a document format is not open, then a 5 year contract can not
reasonably be argued to cease after 5 years. Governments purchasing
closed format systems are effectively failing in their duty to open
their business to fair market competition. Thus, a government contract
involving a closed document format is not following purchasing laws.

Government purchasing should not bind the Government to any other
contracts that are currently in place beyond the term of any such
If a government purchases a product form a company that relies on
another product from that company, and the two contracts have different
lengths, then the shorter length contract is effectively made as long as
the longer length contract. This violates the principle of open market
competition when the shorter length contract expires. Thus, where a
government makes two contracts, of different lengths, and the product
related to one contract is inextricably tied to the product of the other
contract, the the contracts are not in line with purchasing laws.

If one of the products that relies on the other is also closed, then the
contracts for both products are then effectively extended beyond the
length of the longest contract.

Government purchasing should not be used as means of spurring innovation
in and of itself.
Unless purchasing laws are changed, then the support of innovation has
nothing to do with purchasing. The government purchases the results of
innovation that allow government to conduct its affairs in the best
manner as defined by the public service acts etc. Gambling on innovation
futures is not sound purchasing practice and any contract based on such
acts is not in line with purchasing laws.

Governments should make purchasing decisions from an informed basis of
empirical evidence.
Where an industry representative presents evidence to government about
the virtue of products and business methods as they relate to government
purchasing, then the government may choose to listen. When an industry
representative makes uninformed and unsubstantiated claims, it is
governments duty to ignore those claims and to actively dissuade people
from acting in such a way towards the government because to do so is a
waste of government resources. A failure of the government to avoid a
practice that is a waste of government resources is against the
regulations of the government itself.

With regards to the article that started this thread, no empirical
claims were made and as such it is the duty of the government to ignore
this article when making purchasing decisions. With regards to policy,
it would be a sad reflection on the sate of Australian democracy for
unsubstantiated claims to be considered in the passing of laws – who is
the mysterious MLA voting on laws on the basis of nothing?

Arguments against open source

There is no one to sue.
There is no one to sue for most proprietary software either. The
contacts generally state that if it breaks, you get to keep both pieces.
More to the point, suing is not an end in itself. Suing is to recover
damages. To sue a proprietary vendor is to sue for monetary damages
incurred by the inability to run government normally. The problem is,
that same vendor will then have to be either paid or forced by a court
to fix the problem. This is no good, because they have already
demonstrated they are incapable of delivering what is needed. So, you
lose your compensation for monetary damages and more importantly, you
still cant run the government. A better point is, OSS gives you the
chance to run government and you will pay market price for it. Can a
proprietary product match that claim?

Total cost of ownership is higher.
Any government representative who does not consider total cost of
ownership is acting incompetently. Any issues of TCO will necessarily be
dealt with as part of the existing procurement processes. A claim that a
particular business method will result in a higher TCO must be ignored
by the government because to make purchasing decisions at such a broad
level would negate the possibility of a fair market evaluation for each
particular purchase.

OSS does not respect property rights
OSS uses the exact same IP system that proprietary software uses. There
are not two laws, one for OSS and one for everything else. OSS does not
exists outside the single set of IP laws. OSS harnesses IP laws in a
innovative manner to drive product development within a variety of
business models. Whether it be Copyright, Patents or any of the myriad
aspects of IP law, OSS uses IP laws in exactly the same way as
proprietary software. Anyone making representations to government to the
effect that OSS does not respect IP is either knowingly misleading
government or is unable to grasp even the simplest aspects of copyright.
Government and government departments would do well to reconsider doing
business with any such person. The risk to the integrity of the
procurement process and the uninterrupted operation of government are
too high.

Things OSS should not push.

Education about OSS in government departments.
People responsible for software contracts should not be taught about
OSS. They should be taught about IP laws. Different software providers
use IP in different ways to do business. If people buying software do
not know how to interpret a contract and determine if the particular use
of IP law is beneficial or a harmful to the need they seek to address
then they should be taught how to do so.

What should an OSS bill include (if you must have one)

A definitions of OSS
The SA bill seemed to have stripped own version of the OSS definition
from opensource.org. Why not include a well recognised version such as
the DFSG or the OSS definition. Competing definitions of OSS will only

wow, you actually made it down here.
Thanks for reading,

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