texto : On the constitutional preference for Free Software

Free Software

Free Software is not about price, it's about freedom. We understand software is Free when it is licensed under terms that respect every and each of the following freedoms for its users:

• The freedom to run the program, for any purpose (freedom 0).
• The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

By source code, we understand the preferential form for studying and making modifications to the program. It is written in a human-readable programming language, normally including documentation needed to understand and maintain the program. Programs written in certain programming languages cannot be executed until they are transformed into another form, called object code, which is more appropriate for efficient execution, but lacks the documentation and relative ease of understanding present in source code.

Just like freedom of speech imposes some restrictions, such as responsibility about what one says or writes and the prohibition of anonymity in Article 5.IV in the Constitution, some restrictions to software-related freedoms are compatible with the definition of Free Software, when they contribute to a greater good.

For example, requiring that a software or modified versions thereof be distributed only under the same license as the original version is an acceptable and even desirable restriction, since it is used to ensure that derived versions of a piece of Free Software also be Free. Several other acceptable restrictions are intended to guarantee freedoms to third parties.

Requiring copyright notices to not be removed is also an acceptable restriction, not only to give credit to the software authors, but also to ease auditing about the origins of the software. This and other restrictions which intend to give credit to the software authors and which don't actually limit the enjoyment of the freedoms are acceptable.

Open software, according to the law

It is quite obvious that the definition of open software in the law is based on the Free Software definition, even though the term open software (software aberto, in the original) is sometimes used as a translation of the English term Open-Source Software, defined at http://opensource.org/docs/definition.php in a very different way. We understand that it has a similar, but not identical, meaning as Free Software. Open software, defined as follows in the law, does not match any of the two definitions:

"By open program we mean a program whose industrial or intellectual property license does not restrict in any way its cession, distribution, use or alteration of its original features, granting the user unrestricted access, without additional costs, to its source code, permitting partial or complete modification of the program for improvements or adequacy."

We notice that the law refrains from defining Free Software, but it doesn't refrain from using the term, raising doubts on whether it intends that it be understood as synonym with open software, as defined in the law, or according to the FSF definition.

At some points it appears to be the intention of the law to use Free Software and open software as synonyms; in others, it appears to attempt to distinguish between the terms, as in Article 3.II, which says "free program and/or open-source code", terms commonly used as synonyms with Free Software and open-source software, respectively.

The use of so many distinct terms that are well defined in the software community with an apparent synonymy intent in the law makes room for a theoretical risk that, if a license is created that complies with one definition, but not both, a legal vacuum be established in which it is not possible to justify the preference or the non-preference for software licensed under such terms.

Anyway, the remainder of the discussion applies to software that complies equally with the definitions of Free Software and Open-Source Software, such is the similarity between the meanings of both terms. Because of our preference to evoke the freedoms rather than the mere availability of the source code, we use the former and older term in the remainder of the text, but we hope that it is understood that the arguments apply to both, but not to the open software definition in the law.

About restrictions

The law fails more gravely in requiring the license to "not restrict in any way its cession, distribution, use or alteration of its original features", a condition that reduces the amount of software licensed in compatible terms with the definition in the law to nearly zero. Even the most liberal Free Software licenses, such as the X11, MIT and the various BSD licenses, require at least the Copyright notice to be retained, leaving room only for the theoretical possibility of software released under such liberal licenses that don't impose any restriction whatsoever, or the use of software that has become public domain and still has its source code available.

Since law 9609/98 (Brazilian Software law, a special case of copyright law) establishes that copyright over software lasts for 50 years, and software hasn't existed for much longer than that, it makes sense to assume that the law was not intended to privilege the minuscule amount of software developed in the early days of electronic computing, in detriment of all the software industry that flourished from then on.

We believe, based on the justification presented when the law was proposed, that it makes more sense to understand that there was a mistake in the definition of open software in the law, and we thus dispute the law's definition, in disagreement with the common use of the term and the usual definition of Free Software that it resembles so much, and suggest the interpretation of the term in the law through its meaning in the Free Software definition.

Free Software and commerce

Before proceeding to arguing about the constitutional obligation of preference for Free Software, it is worth clarifying a common doubt regarding Free Software's economic viability.

By "commercial software" we denote software that is or was developed, maintained and/or distributed as a business activity, and not as a synonym with proprietary software.

Businesses based on the sale of software licenses are quite common, but even more common are businesses based on services related with software. Most software developed in Brazil and all over the world is not off-the-shelf software, but rather software developed specifically for one user or client. In some cases, the user herself develops the software; in others, the user hires a services vendor to develop the software, negotiating who retains copyright over the software. If the developer retains copyright, it is necessary to determine licensing terms for the customer to make use of the software, as per article 9 in law 9609/98:

"The use of computer programs in the Country requires a license contract."

Nothing stops the developer to choose terms compatible with the Free Software definition for the license, and still be compensated for services such as development, quality assurance, packaging and distribution that it has rendered, as well as for any warranty that might be offered.

It is worth at this point to dispute the common, fallacious argument that Free Software does not offer warranties: proprietary software normally offers warranty only on the media in which the software is distributed, and not on the program's behavior. For warranties on the behavior, also called support services, it is necessary to hire such services separately, both for proprietary and Free Software.

Just like in the case of custom-developed software, whoever develops software with the intent of offering it to a wider market, licensing multiple copies of the software to various license buyers, may elect licensing terms which are compatible with the Free Software definition. A few examples of commercial Free Software are MySQL AB's MySQL database software, Trolltech's Qt graphical user interface library, as well as several products or components from bigger companies such as Red Hat, Novell, Sun, IBM and Apple. Even Microsoft, though most of its software is proprietary, has occasionally developed free software.

Free Software licenses require the absence of cost for the exercise of the freedoms they respect, among them those of copying and distributing the software, with or without modifications. The copyright holder, not being subject to the license terms that apply to the licensees, may require payment not only for the services of copying and distribution, but also for the act of licensing the software to its customers. As long as any such customer is allowed to distribute the software to third parties, extending them a license without cost, there's no violation of the Free Software precepts.

We thus conclude that there is no obstacle to profit through licensing under terms which are compatible with the Free Software definition. Quite the converse, the definition was created in such a way as to enable free trade, not particularly of licenses, but of services such as development, support, training, tuning, among others.

In fact, proprietary software promotes free trade only up to the moment a user makes a choice for one particular piece of software. From that point on, the user enters a monopoly regime. She depends exclusively on the chosen-software's vendor to obtain changes or fixes needed in the software.

In the case of Free Software, not only is initial offering of the software subject to free competition, but also the offering of support, including in support services such as changes and fixes.

Such competition is only possible because the user is free to distribute the software in the form of source code to an aspiring competitor to the original vendor. This grants the potential competitor the ability to study and modify the software and to distribute the modifications back to the user. Nothing in the Free Software definition stops the competitor from being compensated for these services.

Free competition is thus established around the same software, such that competitors that offer the best cost/benefit ratio prevail, while the user is free to switch vendors or hire employees for internal support, without fear of having to incur costs and difficulties related with migrating to software that isn't entirely compatible. In the case of proprietary software any of this often involves the need for conversion between undocumented, proprietary file formats.

On the constitutional principles

We present below some snippets of the Constitution that establish the principles we use in our argumentation.

"Art. 1 The Federative Republic of Brazil, formed by the indissoluble union of States and Cities and the Federal District, consists of a Democratic State with Rule of Law and has as foundations:

I - the sovereignty;

[...]

Art. 37. The direct and indirect public administrations of any of the Powers of the Union, the States, the Federal District and the Cities will abide by the principles of legality, impersonality, morality, publicness and efficiency [...]

Art. 70. The accounting, financial, budgetary, operational and patrimonial inspection of the Union and direct and indirect administration entities, as to legality, legitimacy, economy, application of subventions and surrender of income, will be performed by the National Congress, through external controls, and by the internal control system of each Power.

[...]

Art. 170. The economic order, founded on the valuation of human work and the free initiative, is intended to ensure to all a respectful existence, as per the directives for social justice, observing the following principles:

I - national sovereignty;

[...]

IV - free market competition;

V - consumer's defense;

[...]

VII - reduction of regional and social inequalities;

VIII - seek for complete employment;

IX - favorable treatment for small businesses constituted under Brazilian law with head quarters in the country.

[...]"

For the benefit of readers unfamiliar with the Brazilian juridical doctrine, we will attempt to clarify the meaning of some of the principles, that are not actually defined in the Constitution.

Sovereignty has to do with the country not being submissive to foreign interests, and with taking its decisions with its own and its citizens' best interests in mind, in such a way that they do not end up controlled by foreign interests.

Impersonality has to do with granting the same treatment to individuals in the same conditions, and different treatment to individuals in different conditions, without undue favoring or disfavoring.

Morality has to do with the public administrator having to be an example of ethical and moral behavior; with never using a public position for personal advantage.

Publicness has to do mainly with transparency, with publishing all acts of the public administration, as a means of enabling the society and the public administration itself to exert their control. There are limits to what could or should be published, related with privacy and national security, for example.

Efficiency has to do with striving to make the best use of the limited resources available to the public administration for the benefit of the citizens.

Economy is very similar to efficiency, in that it has to do with not spending resources unless a reasonable payoff is expected. Some sources even consider them as synonyms.

Economy and efficiency

Free Software freedom #0, the freedom to run the software for any purpose, does not make room for charging for licenses on a per-computer, per-processor or per-office basis, so common to proprietary software. As a consequence, it is not necessary for the public administration to go through public tender processes every time it needs the same software for new computers. Economy and efficiency are not only achieved by the lack of need for multiple licenses: the need for the public tender itself is normally dispensable, since the license can often be obtained without any cost.

Add to this Free Software freedom #2, which enables the public administration to distribute the licensed Free Software to all of its citizens, contributing to the improvement of their quality of life, and to other offices in public administration. The efficiency of the investment to obtain Free Software proves to be much higher than that to obtain proprietary software licenses, even in cases in which the up-front investment needed to adopt Free Software happens to be higher.

Sovereignty

Free Software freedom #1, which enables one to study how the software works, is essential to ensure the sovereignty of the public administration. In the absence of source code, it is impossible to verify whether the program does what it claims to do, no more and no less. The user is completely at the mercy of abuses that vendors might choose, or be forced by their government, to commit.

With the possibility of inspecting source code and, more than that, of running object code created from the inspected source code, the risk of such abuses is reduced because detecting them becomes much easier.

Publicness

Since the public administration often processes citizens' data, in situations in which citizens cannot refrain from offering their data, it is up to the public administration to ensure the correctness of the processing, the security and safety of the information and the permanence of access to the data. The first two features can only be ensured by inspection of the source code enabled by freedom #1, whereas the last one depends on adoption of data storage standards that are ideally open, but that must at least be well documented and free from restrictions to their implementation. While proprietary software often seeks to imprison their customers in closed, undocumented formats, in the case of Free Software it is always possible to obtain the format specification, in the worst case by studying the source code.

Publicness and sovereignty

Freedom #1 (study), associated with freedom #2 (redistribution), is a prerequisite to transparency, a requirement for publicness, since it permits the public administration to distribute the software, in source and object code forms, to any citizen who wishes to audit it. In the absence of such freedoms, it is impossible for the public and the public administration to verify the trustworthiness of the electronic ballot boxes used in Brazil, which means they must either blindly trust the vendors of such equipment, or protest against the lack of transparency of the process and the risks to sovereignty.

Economy and sovereignty

Another aspect of freedom #1, that respects the freedom to adapt the software, is essential to economy and sovereignty. Using proprietary software, if the vendor refuses to make a change needed by public administration, the only alternative is to pay for the development of a new software that fulfills the needs, possibly wasting all the investment that went into the previous software. In the Free Software case, the public administration can make changes internally, or take advantage of freedom #2 (redistribution) to hire third parties to do the development work needed for the changes, thus preserving earlier investments.

Impersonality and free market

The combination of freedoms #1 (adaptation) and #2 (redistribution), with regards to the possibility of modifying the software by the public administration or third parties, is exactly what favors Free Software with regards to the impersonality and the free market principles.

When the public administration purchases proprietary software, it not only puts itself at the vendor's mercy with regards to services such as making changes, but also as to support in a wider sense. In other words, the decision to license proprietary software implies favoring its vendor in any subsequent support services related with the program. Justifications, offered in public tenders, of standardization in software adoption also favor a single vendor, a favoring that is incompatible with the impersonality demanded from the public administration.

The adoption of Free Software by the public administration, on the other hand it to decide which vendor to hire to perform each needed service related with the software. Any person or company may qualify to offer the service, without any additional authorization by the original vendor to get access to the source code which enables maintenance and knowledge acquisition related with the software. This is maximum compliance with impersonality and the free market.

Allegations that the preference for Free Software conflict with impersonality are fallacious, based on the false premise that the licensing software in terms that respect users' freedoms is not possible for some software vendors. Quite the contrary, any vendor that got itself in a situation that prevents it from offering its software under a freedom-respecting license, such as the use of proprietary software from third parties as part of their own software, did so by their own choice, knowing that this restriction would be a limiting factor for its customers and itself. it does not amount to a reasonable argument against the preference for Free Software implied in the Constitution.

Small businesses, inequalities, and employment

The freedom afforded by the respect to the principles of impersonality and free market enables the state to promote the participation of local small software businesses where they currently stand no chance of competing with the monopolies that dominate the software market.

The careful choice of promoting such Free Software businesses can be used to comply with other economic order principles, such as the reduction of regional and social inequalities. Preferring local businesses over foreign monopolies also complies with the seek for complete employment.

Consumer's defense

Since the sale of Free Software licenses is not regarded as a reasonable business model, Free Software businesses tend to be based on services such as development and support. Such businesses are required by consumer defense law to offer warranty over their services. This contrasts with proprietary software commercial licenses whose warranty covers only the media that carries the software, and that require separate contracts for support services.

Free Software consumers thus tend to be better protected than proprietary software consumers.

Morality

Gratuities and job offers to current or former public administrators that chose proprietary software during their administrations are not unheard of.

Companies that offer such advantages recognize that the choice for their software has long-term favorable effects to their companies. Public administrators must reject such offers to comply with the principle of morality. Privileging the adoption of Free Software is a good way to avoid the temptation to infringe on this principle.

Distributing improvements

In order to preserve the constitutional principles discussed above in face of the possibility of modifications to the software by the public administration itself, freedom #3 (distribution of modifications) is necessary, in addition to freedoms #1 (adaptation) and #2 (redistribution), otherwise it would not be possible to distribute the modified software.

TCO and economy

In discussions on this topic, references to studies about Total Cost of Ownership (TCO) are a frequent argument against the common sense perception about the potentially maximum economy inherent to licensing regimes that allow for the freedom to use the licensed software at no charge.

It is worth pointing out that the result of such studies invariably reflects the choice of metrics to evaluate what constitutes the so-called "total cost of ownership", and that casuistic choices may lead to any kind of result.

Particularly, when the choice combines (a) the cost of migrating information systems built upon a regime of digital standards, formats and codes for which knowledge is restricted and only available under restrictive licenses, which induces dependencies of clients on vendors, to a regime of free and disentangled standards and codes; (b) the cost of training to install and operate new systems, in a market naturally heated by the growing demand for semiotic autonomy; and © excessively-limited temporal and causal horizons to account for maintenance of existing proprietary systems, the result can easily contradict common sense, under a false aura of authority lent by voluminous statistics.

Finally, it is worth observing that studies with such casuistic metrics abound in specialized literature, as a general rule sponsored by vendors interested in maintaining the status quo of their contractual regimes and their monopolistic positions in the marketplace. This sponsorship is not always brought up when such studies arise in references in administrative or juridic literature.

Free Public Software

Although it is not always dealt with by laws under debate, it is worth pointing out that the distribution of software by the public administration should also be done, as a general rule, in the form of Free Software, not only to comply with the publicness principle, but also with economy, enabling people and companies to voluntarily contribute to the improvement of the software, relieving the public administration from at least part of the needed investments to satisfy their own needs and those of citizens.

Arguments that such licensing, if offered without cost to any person or company, would represent administrative improbity or improper favoring do not seem reasonable to us, since impersonality is not infringed when the same profit possibility is granted to every person and company. Quite conversely, it is state investment enabling economic development.

Denial of the freedoms

Denying or significantly limiting freedom #0 (execution) contradicts the principles of economy and efficiency.

Denying or significantly limiting freedom #1 (study and adaptation) contradicts the principles of sovereignty, economy, publicness, and morality.

Denying or significantly limiting freedom #2 (redistribution) contradicts the principles of publicness, economy, efficiency, morality, and the economic order principles.

Denying or significantly limiting freedom #3 (distribution of improvements) contradicts the principles of publicness, economy, efficiency, morality, and the economic order principles.

It remains clear, thus, that respect for the 4 freedoms is necessary for compliance with the constitutional principles that guide the Union's and public administration's behaviors, therefore the constitutional preference for Free Software is proved.