[en] FSFLA News Issue #14

[Beatriz Busaniche]

FSFLA News
Issue #14
September 2006 
http://www.fsfla.org/?q=en/node/110


* 1.Editorial: Brazil's Constitution wants Free Software in the
Government
* 2.Fight campaign against DRM
* 3.FSFLA in the media
* 4.Events
* 5.Participate in FSFLA

1. Editorial: Brazil's Constitution wants Free Software in the
Government

The Brazilian state of Rio Grande do Sul was one of the pioneers in
legislating for Free Software adoption in the public administration,
with law number 11871 [LAW] passed in December 19, 2002. The law
established that the public administration ought to use preferentially
"software that is open, free from proprietary restrictions to its
cession, modification and distribution."

The law is being challenged in court as unconstitutional [INI], with
support from Amici Curiae that have historically sided with proprietary
software in Brazil [AC1], and the law was suspended in a federal court
in spite of Union's legal advice that shot down all of the arguments
[AGU].

FSFLA is now trying to join the case as Amicus Curiae as well, with help
from organizations already established in Brazil, to correct some
mispresented arguments as to what Free Software means, to point out
actual problems in the law related with its definition of `open
software', and to argue that the Brazilian Constitution already grants
Free Software, even if implicitly, the preference by the public
administration that the law grants explicitly.

Since most of the constitutional principles used in our arguments are
mainly common-sense principles for the public administration, we expect
them to be available in many other legal systems, which is why we've
translated the paper, in an attempt to reach a wider audience.

The law
--------

The law defines "open software" according to the 4 freedoms of the Free
Software definition, except for a minor but very significant mistake: it
states that no restriction whatsoever must be imposed to the exercise of
the freedoms. This unfortunately fails to grant preference to most of
the existing Free Software, since even the most liberal licenses do
impose restrictions such as keeping the copyright notice intact, or
using the same license for distribution of derived works. As long as
people keep following the spirit of the law, granting it preference even
where the law fails to do so, this shouldn't be a major problem.

It is worth pointing out that there are cases in which the law permits
non-Free Software, with justifications such as that the non-Free
Software has well known advantages over competing programs, yielding a
better return of investment for the public administration; and when the
use of the Free program causes incompatibilities with other programs
used by the administration.

The attack
----------

As it turns out, this law is being challenged in court as
unconstitutional, under case number 3059/03. The arguments presented in
the initial filing [INI] are that state laws cannot regulate public
tenders, since such regulation is reserved for the Union; that the law
failed to respect the principle of isonomy (equal distribution of rights
and privileges) towards licitants; that the adoption of Free Software
would infringe on the principles of efficiency and economy; and that
such laws could only be proposed by the Executive power, never by the
Legislative power.

Even though the Union's legal counsel advised that all of the arguments
were faulty [AGU], a primary injunction was granted by the federal Court
where such cases are handled, and the law is currently suspended.

Meanwhile, ABES (Brazilian Association of Software Businesses) and
ASSESPRO (Association of Brazilian Businesses on Information Technology,
Software and Internet), the organizations behind most campaigns against
unauthorized software copying (software piracy [SPI], as they put it) in
Brazil, and have been on record against Free Software, filed a petition
[AC1] to be accepted as Amicus Curiae for this case.

Their arguments against the law start by presenting what they mistakenly
claim to be fundamental differences of nature between proprietary and
Free Software, stating that the former is "intended for commerce, have
closed sources and are protected by copyright," whereas the latter have
"academic origins, open sources and permit modification, reproduction
and free distribution," thus mingling together two orthogonal
dimensions: proprietary vs. free and commercial vs. non-commercial, and
confusing the freedoms respected by Free Software with the mere
availability of source code implied by the nearly-synonym term "Open
Source Software."

Then they go on to argue about the lack of warranty for Free Software,
as if commercial transactions involving Free Software didn't impose
legal requirements identical to those involving any other kind of
software; and many other fallacies against Free Software that I'm sure
you've heard before. They wrap up by repeating arguments that support 3
out of the 4 claims in the initial filing.

Our response
------------

FSFLA, with support from entities already established in Brazil, is
working to file a balancing Amicus Curiae petition. To such end, we
wrote a position paper [FSF] in which we argue that the Brazilian
Constitution already establishes principles that are more than enough to
grant Free Software the preference given by the suspended law, and that,
if the law is at fault, it's not because of the arguments presented by
its opponents, but because its Free Software definition is flawed. This
does not make the law unconstitutional: it just makes the law inoperant,
although in practice it still accomplished its stated mission when its
spirit was followed.

Our arguments are based on the four freedoms of the Free Software
definition:

(#0) to run the software for any purpose,

(#1) to study it and adapt it to your needs (requires source code),

(#2) to redistribute the software the way you received it, and

(#3) to distribute modifications to it (requires source code);

and on the following constitutional principles:

- sovereignty: defend the country's and citizens' interests without
being submissive to foreign interests;

- impersonality: no undue favoring of individuals or businesses in
similar conditions;

- morality: not using a public position for personal advantage;

- publicness: mainly transparency, enabling the society to exert control
over the government;

- efficiency: making the best use of the limited available resources;

- economy: spending only when the expected payoff is reasonable;

A few other economic principles stated in the Constitution were also
used: free market competition, consumer's defense, reduction of regional
and social inequalities, seek for complete employment and favorable
treatment for small businesses constituted under Brazilian law with head
quarters in the country.

The arguments are presented below in an extremely shortened version that
assumes some familiarity with the Free Software business models. The
full article [FSF] goes into far more detail in both explaining the
various Free Software business models, with clarification on some common
incorrect assumptions, and detailing the arguments and how they relate
with the constitutional principles.

It's easy to see that the freedom to use the software, especially when
combined with the freedom to redistribute it, contributes to economy and
efficiency, in that it enables a single investment to benefit all of the
public administration and even all of the citizens, and it often saves
the entire cost of public tenders for software licensing. Without the
freedom to study and adapt the software, sovereignty is at risk, since
you can't tell what the program does, thus violating transparency, since
you can't share with citizens what programs do, or how their information
is handled or encoded.

The freedoms to study and adapt the program, to redistribute it, and to
distribute modified versions, combined, also contribute to economy and
sovereignty, in that they enable the government to hire third parties to
maintain software that a vendor abandoned or failed to maintain
satisfactorily. This in turn favors impersonality, since otherwise a
choice for a software platform would favor its vendor for as long as it
was still in use (which is why morality is often tempted at the time of
such choices), and the free market, since it makes room for competition
for services that only the original vendor could offer otherwise. This
can be used to favor local small businesses, which increases employment,
and to reduce inequalities, since Free Software makes monopolies harder
to build.

Warranties that must be offered to consumers per Brazilian law also
apply to software transactions, but proprietary software warranties
generally only cover the media; Free Software vendors, inasmuch as they
offer software services, must thus offer real warranties, improving
customer protection.

Conclusion
----------

Since we are not legally established in Brazil yet, we depend on third
parties to be our proxy as Amicus Curiae. We hope the court will accept
the petition, if it is filed in time, such that our paper can have a
chance to dispute the misconceptions presented in the original filing
and in the first Amicus Curiae petition, and make sure the term Free
Software is not poisoned in Brazilian legal system.

As explained above and with more detail in the paper, it doesn't matter
much if the law is kept or shot down. Even though we don't see
constitutional grounds to shoot it down, we'd really like the definition
of the software class it privileges to be improved such that it matches
the spirit of the law, already supported by the Constitution.

Even though we realize such a lawsuit is not the proper forum to
rephrase the law, in the paper, we offer an alternate definition, that
explains why certain limitations to the freedoms are acceptable, such as
those to ensure that similar freedoms are granted to third parties when
the software is redistributed (copyleft), to ensure that credit to the
authors is preserved (not removing copyright notices), and others that
might serve a useful purpose without effectively limiting the exercise
of the freedoms (say, requiring the inclusion of a certain sentence in
advertising material).

Although we oppose the current law, in that it is innocuous and it
creates some confusion as to what Free Software means (even if it uses a
different term), we hope the law is maintained and fixed, such that not
everybody has to become an expert in Free Software market dynamics to
realize why the four freedoms are necessary to comply with all
aforementioned constitutional principles.

[LAW] Fully cited in [AGU].

[INI] http://www.kcp.com.br/diversos/adin_rs/inicial.pdf

[AGU] http://www.kcp.com.br/diversos/adin_rs/AGU.pdf

[SPI] http://www.gnu.org/philosophy/words-to-avoid.html

[AC1] http://www.kcp.com.br/diversos/adin_rs/amicus-abes.pdf

[FSF] http://www.fsfla.org/?q=pt/node/109

2. Fight campaign against DRM

The team of the campaign against the DRM in Latin America continues
working to define strategies and to spread details on what DRM are,
which rights they violate and which is the political and legal
consequence of the technical mechanisms of access and copy restriction
to digitized contents.

At the moment, the team is defining the details to mount the campaign
web page, in order to continue with other spreading mechanisms,
specially the radial spots campaign that will make FM La Tribu of
Argentina, transmitter that has joined our work in defense of freedom in
digital environments.

The DRM campaign team is concentrated around the mailing list,
accessible in http://www.fsfla.org/cgi-bin/mailman/listinfo/anti-drm

The DRM posture document, elaborated by FSFLA, is also available in
http://www.fsfla.org/?q=en/node/101

3. FSFLA in the media

During the last few weeks, FSFLA had numerous appearances in mass media.

The tech portal Canal-ar of Argentina made several notes related to the
work of our organization. Beatriz Busaniche participated in a video
where she explained what is free software, what impact has in digital
inclusion projects and which is its strategic roll in our societies for
WebTV of Canal-ar.

On the other hand, journalist Sebastián Premici published a note
entitled “The threat of DRM”, with an interview to Beatriz Busaniche,
where she explains the nature of these devices and the citizen rights
that put in risk. The note is available in
http://www.canal-ar.com.ar/Noticias/Noticiamuestra.asp?Id=3479 (Spanish)

Journalist Matías Aizpurúa, of the same media, wrote a complete article
on the monitoring mechanisms of proprietary operating systems available
in http://www.canal-ar.com.ar/Noticias/NoticiaMuestra.asp?Id=3494
(Spanish). The text mentions great part of the work of the mathematician
Pedro Rezende, member of FSFLA, on WGA, available in Spanish and
Portuguese in http://wiki.fsfla.org/wiki/index.php/Wga_es . The note
counts in addition with an opinion written by Federico Heinz and
numerous quotes to works published by Richard M. Stallman.

In August, FSFLA also participated in the bulletin of the University
Information system InfoSiu, with an article written by Beatriz Busaniche
on hacker ethics and free license systems for documentation and
software. The full text of the article is available in the site of SIU
in http://www.siu.edu.ar/InfoSIU/&edicion=16&nota=93 (Spanish)

Besides, VivaLinux published the article “the FSFLA initiates campaign
against the DRM”. In there, this portal dedicated a complete note to the
campaign in which the anti-DRM team is working, in its mailing list as
in the campaign resource wiki. The cover of VivaLinux is available in
http://www.vivalinux.com.ar/eventos/fsfla-vs-drm.html (Spanish)

Meanwhile, on Wednesday 23 of August, Beatriz Busaniche participated in
the program “La mar en coche”, in the central schedule in the morning of
FM La Tribu in Argentina. From that space we could talk with journalists
and listeners about the FSFLA campaign against DRM, thus contributing to
the public diffusion of the dangers and threats that imply the
technologies of digital restriction of access and copy of contents.

4. Events

Beatriz Busaniche and Enrique Chaparro were present at Consol 2006, the
Free Software National Congress, that took place August 15-18 in the
Mexican Federal District. They presented there at least seven lectures
in which they discussed both technical and political themes,
particularly issues related with Patents, DRM, Software licensing and
ongoing threats to freedom and privacy in digital environments. Besides,
they participated in a roundtable and an informal speech about the
threat of fines that Mexicans are publicly receiving for the use of P2P
networks. FSFLA thanks the gentle invitation from the Consol organizers,
and hopes to be part of Consol 2007!

Federico Heinz was in Montevideo, Uruguay, invited by the free software
user group in that country (Uylug). Federico took part in a speech in
the Informatics in the Public Administration Summit and offered a
lecture about DRM in the DebianDay that took place in Montevideo.

Alexandre Oliva was in Lauro de Freitas, Bahia, Brasil, where he
participated in the III Free Software Festival in Bahia with his
speeches "As Ações Mais Legais da FSFLA" (The Coolest/Most Legal Acts by
FSFLA: Free Software Foundation Latin America) and "O Poder Libertador
do Segundo Dedo" (The Freeing Power of the Second Finger).

On September 4-8, Beatriz Busaniche will visit Oruro, Bolivia, where
she'll participate in the VI Free Software National Congress with a
lecture about the progress in the revision process of the GPLv3 license.

On its part, the Librarians Association in Rosario, Argentina, invited
Beatriz Busaniche to participate in its VII Regional and V Provincial
Librarian Meeting, to take place on that city on September 15-17. In
this event, we'll discuss issues related with Free Software, access and
diffusion of knowledge, along with librarians that take part in the
meeting.

Federico Heinz and Fernanda Weiden will take part in IV Wizards Of OZ,
that will take place this year on September 14-16 in Berlin, Germany.
http://www.wizards-of-os.org/index.php?id=63&L=3 During his trip in
Germany, Federico will participate in several other events, invited by
Heinrich Boell Foundation.

5. Participate in FSFLA

FSFLA needs your help. If you'd like to contribute in any work group, to
join the FSFLA or be part of ongoing activities, don't hesitate to
participate in the team of your preference. The complete list of teams
and ways of participation is published in our section ¿Cómo participar?
http://www.fsfla.org/?q=es/node/78 (this could use an English
translation, can you help? :-) 


-- 
Beatriz Busaniche
Consejera FSFLA                             http://www.fsfla.org
Fingerprint    57F9 21EF B0C3 2A69 9EA0 D698 28D6 B8AE 2A7D 7321
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