*More than competition of monopolies; why should the government support FLOS/Malayang Software?

By Ricardo Bahague Jr**

Introduction

Recently, news articles on talks of Seow Hiong Goh, Business Software Alliance (BSA) director pressuring governments to remain neutral between free and open source and proprietary software were published. According to an itmatters.com.ph news article, "Established in 1988, BSA has served as the core group that protects commercial software companies in governments and international marketplaces. Present in over 60 countries, the group's members include Adobe, Apple, Autodesk, Avid, Bentley Systems, Borland, Cisco Systems, CNC Software/Mastercam, Dell, Entrust, HP, IBM, Intel, Internet Security Systems, Intuit, Macromedia, McAfee, Inc., Microsoft, RSA Security, SolidWorks, Sybase, Symantec, UGS Corp. and VERITAS Software."

The BSA and the Free and Open Source Software (FOSS) advocates are in disagreement due to different interests. BSA more than its concerns for software development is its concern of protecting huge profits extracted from its users. This would also be the reason why they are also in FOSS projects. BSA members are expanding their powers to FOSS projects. On the other hand, FOSS groups concern themselves with the freedom they enjoy in developing software programs and applications. These freedoms are on copying, redistribution, use, modification, and publishing of their works without the hassle brought by employee-employer relationship. Most FOSS projects have volunteer members at their own expense.

Development Models

FOSS projects are developed by community of volunteers around the globe. Their communications are channeled through the internet. The Debian GNU/Linux project for example, is maintained by about a thousand developers from different countries. It contains about 10,000 applications which in a proprietary set-up are to be paid each time an application is to be used. In the contrary, FOSS projects and its derivative are available without the licensing cost, one only has to acquire an "installer" and install it on his computer. Acquiring the installer would just cost him the compact disc (CD) and copying or the internet bandwidth used.

FOSS projects are fundamentally based on the freedom to run, study, redistribute, and improve programs and publish enhancements to the public such that other developers and users can again run, study, redistribute, and improve the program. Without this freedom FOSS projects would have not gone to where it is today. In opposition, BSA has maintained that software development should be founded on exclusive monopoly of corporations or individual on ideas and source codes behind software programs. This has made FOSS projects vulnerable to patent infringement lawsuit by big monopoly software companies. The celebrated SCO lawsuit to IBM on March 2003 is an example, alleging that part of the current source of the Linux kernel was copied from SCO's Unix.

If FOSS projects are to be evaluated based on the cost analysis of big software companies, it would require them thousand of year’s development time. In "More Than a Gigabuck: Estimating GNU/Linux's Size," the Red Hat Linux 7.1 version is found to have 30 million source lines of code which would cost 1.08 billion dollars (year 2000 dollars) to develop in the United States for about eight thousand person-years of development time. In a similar study of "Counting potatoes: the size of Debian 2.2", Debian GNU/Linux version 2.2 is found to contain over fifty-five million source lines of code. Proprietary companies would have spent 1.9 billion dollars (year 2000 dollars) to develop it. Both Debian GNU/Linux and Red Hat Linux are GNU/Linux distribution compiled by volunteers (in case of Debian GNU/Linux) or a professional company such that it becomes a complete operating system with numerous applications available.

On the other hand, proprietary development which brought Windows, Microsoft Office applications and MAC OS to life, were created by well-paid developers housed in comfortable headquarters. They are the companies' investment, which is one of the reasons of BSA members for their costly software applications. Of course we have not known who the unsung developers are for these projects; all credits are to the likes of Bill Gates and Steve Jobs.

Intellectual Property Rights and community sharing

Intellectual property rights (IPR), as if an idea is a private property (like land, real states, etc) or monopoly of a single entity, has been the defense of Microsoft and big monopoly software companies in extending their profits and wiping out competition. Moreover, IPR is not limited to software innovations but also in chemical, pharmaceuticals and industry. IPR as commonly known today is based on the definition of World Trade Organization members through the Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPs).

Patent in simple terms is allowing a monopoly on the idea or process of how to go from point A to point B. The TRIPs allows patentability of "any inventions, whether products or processes, in all fields of technology, provided that they are new, involve and inventive step and are capable of industrial application." Patent holders then have the exclusive rights for 20 years on "making, using, offering for sale, selling, or importing" the patented product or the product obtained directly by patented process.

In the European Patent Office alone, more than 30,000 software patents were granted and are increasing by 3,000 per year. Worldwide, 4 million patents are valid and every year 700,000 patents are applied for. Siemens for example, has 50,000 patents. This would mean that a budding developer has to look at this huge number of patents to escape from being sued for patent violation.

Patents have been used by BSA members' in protecting their software development against new competitors. How does IPR, particularly the patenting aspect wipes out competitors of big companies?

Bill Gates had explained it clearly to his staff, "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors." Royalty fees would definitely hurt a start-up company if it bows to the giant’s patent infringement lawsuit. Eventually, only the giant would stay in the market, reaping all the profits.

The scope of IPR in TRIPs however, is not limited to patents. IPR includes copyright, trademarks, geographical indications, industrial design, and layout designs (topographies) of integrated circuits. For the BSA and the FOSS advocates, copyright and patent issues are the more relevant sections.

Copyright on the other hand, pertains to identifying the author of a creation. It restricts the copying of literary works and others without the author's permission. It does not require any formal registration, though. For example, this article is automatically copyrighted to the author or to the organization voluntarily chosen by him. The TRIPs requires that copyrights extend to 50 years after the author's death. Copyright however is the reason for expensive books, printed journal, and other printed works. It has denied access to poor countries to much needed information on researches, medicines, and others.

BSA and other monopoly software companies have confused the public about the differences of copyright and patent. It should be clear by now that when IPR regimes shout anything about IPR these mean patents and copyrights, more than just private ownership of ideas but also replication and copying of implementations of these ideas.

Conversely, the FOSS community has struggle against IPR, as defined in TRIPs, to continue their freedom in software development. Although there are varying opinions on copyright, the community is united against monopoly software patenting and in general against the IPR as imposed by TRIPs. BSA’s Seow Hiong Goh, however wants to impose IPR on FOSS. According to him, “IPR is another issue that should be implemented by both open source and proprietary technology.”

From the former section, we know that FOSS projects are totally different from proprietary development. Since IPR, based on TRIPs, restricts the freedom to run, study, redistribute, improve and publish patented ideas and copyrighted implementation, its imposition on FOSS projects would mean killing the fruits of thousand volunteer developers that had crafted software programs but have not registered the ideas behind those programs in any Patent Office. Furthermore, FOSS programs are only covered by the GNU General Public License (GNU GPL) which protects the fundamental freedoms earlier stated but do not bothers with the formality of any Patenting office.

Imposing IPR, as TRIPs has defined, to FOSS projects is capitulating to the interests of the members of BSA. It means playing the patent game of BSA members. But the patent game would be out reach for most FOSS projects. Since most are volunteer-based and relies on donations from users. Moreover, BSA cannot equate community sharing of knowledge inherent to FOSS, which is protected by GNU GPL License, as an adherence to IPR defined by TRIPs just because FOSS also has a copyright licensing scheme, as Mr. Goh is trying to imply. IPR-related licensing scheme (EULA’s in terms of BSA members) and the GNU GPL License are diametrically opposed. While EULAs protects the profiteering interests of BSA members by upholding monopolies, the GNU GPL License protects the public against monopolies in software programs.

More than favoring ‘competition’ of monopolies; FLOSS adoption in Government

Why should governments of third world countries support FLOSS?

We answer the above query by citing how the government should support FOSS and expound why prefer one option over the other. The United Nations Conference on Trade and Development in its study of FOSS adoption of different countries presented two general areas of policy implementation options for Governments:

1.Formal vs. informal approaches: Formal approaches such as legislation or government strategic plan may be weighed against more informal, flexible approaches to letting FOSS use evolve without normative patronage.
2.Strategy and level of involvement: Strategy initiatives may be carried out at sub-national, national, or regional levels, and they may also entail different degrees of involvement, from awareness building to procurement to funding of R&D.

In the Philippines, science and technology, including information and communications technology, development has long been neglected. The country has only about 152 scientists and engineers (including computer scientists) per million, less than by a half of the UN recommended 380 per million population. Its R&D spending is a measly amount of 0.3% of GNP, far below the minimum 1% of the GNP set by UNESCO for developing countries. It is in this context that government support and involvement for FLOSS R&D becomes relevant. The Bayanihan Linux mailing list for example, cries for more government funding for its R&D. Bayanihan Linux is a GNU/Linux distribution developed by the Advance Science and Technology Institute for government agencies, complete with office productivity suite and other applications taken from various FLOSS projects.

Formal government support to FLOSS development however should not be limited to greater R&D spending. The government should formally adopt FLOSS solutions whenever proprietary solutions do not give considerable advantages. This would greatly boost budding developers and small Filipino software companies largely dependent on outsourcing contracts. It helps breaks the monopoly of proprietary solutions that reaps huge profits from government contracts.

FLOSS adoption in government prevents vendor specific lock in on data formats and data processing. The arguments of Peruvian Congressman Edgar Villanueva on open data formats and data processing in government is also of relevance to the Philippines. He stressed that

To guarantee free access by citizens to public information, it is indispensable that the encoding of data not be tied to a single provider. The use of standard and open formats guarantees free access.
To guarantee the permanence of data public data. the usability and maintenance of the software should not depend on the goodwill of suppliers or on monopoly conditions imposed by them
To guarantee national security, the State must be able to rely on systems without elements controlled from a distance. Systems with open-source code allow the State and citizens to inspect the code themselves and check for back doors and spyware.


More importantly, FLOSS adoption decreases technology dependence from big software companies. Third world has been technologically dependent on developed nations and it has been expensive for them acquiring them. FOSS environment encourages tailoring technology for local needs. This would develop the local software industry to serve local needs.

With the growing budget deficit and foreign debt, proprietary licensing fees and support are added burden. Instead, the government should channel this amount in developing competent manpower for FLOSS adoption. On this process, job creation for the growing unemployed graduates in ICT is much needed.

Strategic policies should also be initiated. The government of South Africa for example, has mandated FLOSS preference for government procurements in ICT needs when proprietary software does not offer compelling advantage. Link with Higher education is an important factor for manpower development. Higher education institutions on ICT should focus on instructions for technology creation rather than being users of technology developed by monopoly software companies. Most ICT schools are locked in licensing agreements with Microsoft Corporation.

The neutrality stance advocated by BSA which is currently adopted by the Commission on Information and Communications Technology is different from the neutral approach cited by the UNCTAD’s study. While UNCTAD’s neutral approach requires that the choice for FOSS be supported and the discrimination against it be eliminated, CICTs neutrality do not reflect any initiative for FLOSS. Its neutrality is based on free competition concept. But for a country with a struggling and developing software industry, how can small (FLOSS) software companies compete with proprietary giants? In the end, CICTs neutrality is based on eliminating FLOSS solutions. It is giving more preference for big proprietary software companies and their proprietary products in supplying government’s ICT needs.

FLOS/Malayang Software Initiatives in Advancing ICT for the People

For FLOSS advocates, more than the consideration of lower Total Cost of Ownership (TCO) in deploying FLOSS solutions against proprietary one, we should emphasize the freedom enjoyed by the FLOSS community. Moreover, with the technical capabilities we have, we should put forward the rallying cry for advancing information and communications technology for the people.

Currently, a very small fraction of the population has benefited from the advances in ICT. This has been known to the government and there are efforts to make it more accessible to the grassroots. The People’s PC program of CICT is an example. But like most government projects, it becomes more of a profiteering scheme for big companies. For an amount of P16,000 to P20,000 a desktop computer with Intel Celeron processor but without an operating system is being sold. The Computer Professionals’ Union earlier called it an “expensive paperweight!”

In the year 2002, the Philippine Linux Users’ Group mailing list had discussions on adding a local flavor to the growing FLOSS “movement.” The term “Malayang Software” has since become the local equivalent of Free Libre Open Source Software. The greater use of “FLOS/Malayang Software” however, is not on companies looking for a way to increase their profits but more on bringing ICT to the grassroots. Digital divide has been the more popular term.

ICT and in particular, “Malayang Software” should be use as tool for the struggle of the Filipino people for economic self-reliance. It should be part of national industrialization efforts. For only in developing the country’s basic industries can ICT and Malayang Software be fully harness. By then local developers and local software companies will not fear losing outsourcing contracts.

References:

1.www.ffii.org
2.www.nosoftwarepatents.com
3.Linux, From Wikipedia, the free encyclopedia
4.Pio Versola, Towards a people’s alternative to IPR, Agham-Youth Symposium, 23-24 September 1999.
5.Edu H. Lopez, BSA exec maintains neutrality regarding open source issues, Manila Bulletin, 1 November 2004.
6.Kerlyn G. Bautista, BSA lobbies vs. pro-open source software laws, itmatters.com.ph, 20 October 2004
7.Free and Open Source Software: Implications for ICT policy and Development, Chapter 4, United Nations Conference on Trade and Development Report 2003, Internet Edition, UNCTAD Secretariat.
8.Paul Davies, Open Source Software: Perspective for Development, The World Bank, November 2003.
9.State of Science and Technology in the Philippines, Draft version, Samahan ng mga Nagtataguyod ng Agham at Teknolohiya para sa Sambayanan.

*This is a response to the speech of Business Software Alliance’s Director, Seow Hiong Goh at the ASEAN Summit on Convergence. This article is a CPU copyleft, November 2004. Verbatim copies are allowed provided this notice is maintained.

**Ricardo Bahague Jr., is a member of Computer Professionals’ Union’s Preparatory Committee. The author can be reached at rickjr@cp-union.org. Visit www.cp-union.org for information about CPU.