On the constitutional preference for Free Software
Alexandre Oliva
Pedro Antonio Dourado de Rezende
Law number 11871 of the Brazilian state of Rio Grande do Sul (RS), published on December 19, 2002 is known as the Free Software Law, despite the fact that it does not define Free Software and apparently uses it as a synonym with open software. This law is being challenged on constitutional grounds, under case number 3059/03.
It is up to FSFLA -- Free Software Foundation Latin America (in process of creation in Argentina and still not legally represented in Brazil, joining the network of foundations formed by FSF -- Free Software Foundation in the United States of America, FSFE -- Free Software Foundation Europe and FSFI -- Free Software Foundation India) to speak up regarding the conceptual inaccuracies present in the law and in the case records. These include the meaning of Free Software, a term coined by the FSF, which aims at promoting and defending software licensed in this modality, just like its sister organizations do, among them FSFLA.
Free Software is a matter of freedom to its users: freedom to run, copy, distribute, study, modify and improve the software. Just like freedom of speech, these are not necessarily unlimited freedoms, but nevertheless freedoms with valuable purposes for society and the common good. Restrictions to these freedoms may be acceptable, unlike the definition in the law, such as restrictions aimed at guaranteeing the same freedoms to third parties, restrictions that preserve credit to the authors of the program, and others that do not limit, in practice, the enjoyment of the freedoms. In particular, Free Software does not restrict the commercial use of the software, nor the commercialization of development, distribution, support, training and other services.
It is true that FSFLA cannot position itself favorably to the law, since it creates confusion and doubts regarding the terms Free Software and open software. It defines "open software" in terms incompatible with its own justification, thus rendering itself ineffective, putting on the same level of preference the categories of Free Software (which is distributed under licenses that respect these freedoms), and proprietary software (that is distributed under licenses that do not). As we will argue, the choice of Free Software complies much more than that of proprietary software with the constitutional principles established for the Union, the public administration and the economic order, such as sovereignty, efficiency, economy, publicness, impersonality, free market, reduction or inequalities, complete employment and favoring of local small businesses.
The freedom to run the program for any purpose means there is no need to purchase new licenses for every new computer, contributing to the economy principle. Combined with the freedom to redistribute the program, it implies a single investment by the public administration may benefit all of its citizens, contributing to efficiency. The freedom to study the software is essential to sovereignty and, together with the freedom to distribute, to transparency, required by the publicness principle. The freedom to modify the software is important not only for sovereignty but, combined with the freedom to distribute the software, also for economy, impersonality, and free market, since the public administration does not end up at the mercy of a single vendor. When modifications in the software are needed, the public administration may hire any third party to perform the needed service, instead of being required to favor, repeatedly and indefinitely, the vendor of a non-Free Software option, or to incur the costs of a migration. It can favor small local businesses, which reduces inequalities and helps achieve the goal of complete employment.
In the remainder of this paper, we provide more details on the definition of Free Software, then explain the dynamics of the Free Software markets and demonstrate, on these grounds, how the preference for Free Software follows directly from the application of the aforementioned constitutional principles established for the Union, the public administration, and the economic order.
Definitions
Free Software is defined by the FSF in its web site (http://www.fsf.org/licensing/essays/free-sw.html). The same definition is present in the web site of its main project, that of the GNU Operating System (http://www.gnu.org/philosophy/free-sw.html), and in FSFLA's web site (http://www.fsfla.org/?q=en/node/19). A summary of the Free Software definition follows.
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 preference for Free Software
Starting from the principles of sovereignty, economy, efficiency, publicness, and impersonality, that the Constitution establishes for the Union and the public administration, as well as the principles established for the economic order, we will argue that the Constitution already requires a preference for Free Software.
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 (c) 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.
On laws that codify preference for Free Software
As we have shown, the Constitution establishes principles for the Union, the public administration and the economic order that lead to choosing Free Software.
One has to agree that, even though the evidence is clear once the arguments are formalized, the comprehension of the mechanics of Free Software is not easily accessible to minds used to a market based on the proprietary licensing model.
This is the context in which laws such as that of RS appear, proposed by a few people who understood the extent of the ongoing constitutional violation and sought, through a more direct formalization of the thoughts exposed herein, to fix this distortion and subject the public administration, at least in the levels that they could reach, to compliance to constitutional principles.
Even though many such laws have made the same definition mistake as the RS law that this case is about, pretty much voiding their juridic effects, they served and serve the purpose of guiding decisions on software acquisition by several levels of public administration where they apply, even because many of the decision makers did not realize that the definition is in error and/or follow the spirit of the law when the equivocal letter rendered them inoperative.
Due to the way in which such laws have defined the software class that they intend to be Free Software, they do not seem to be leading to compliance with the constitutional principles for the Union, the public administration, and the economic order, so there is indeed room for questioning their constitutionality.
Should, however, they use the correct definition, with the arguments exposed herein, it appears to us that it would be difficult to argue against their constitutionality, since they would only codify in a more immediate way what the Constitution already codifies implicitly.
We thus suggest to and request from the powers that can correct or revise such laws to use a correct definition to do so. Our suggested writing follows:
"In order to comply with the constitutional principles of economy, efficiency, publicness, sovereignty, morality, impersonality, free market, 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 public administration must prefer software licensed under terms that offer access to their source code and permits the user to run it for any purpose, to study it, adapt it and distribute it, with or without modifications, at least under the same terms in which it was received, with a possible permission for distribution under different terms. Restrictions to such permissions are acceptable with purposes of ensuring the offer of the same freedoms to third parties, for example, the requirement that any distribution be made under the same terms; with purposes of preserving credit to authors, for example, the requirement of preserving copyright notices; and other restrictions that do not affect significantly the actual enjoyment of such permissions, for example the requirement that a certain sentence be included in promotional material or advertising of software derived from the original.
By source code we understand the preferred form to study and modify the software, including documentation normally present in source code. In the case of software in the form of object code, we understand its source code as all the modules it contains, definition and interface files associated with them, files used to control compilation and installation of the object code, i.e., anything that may have been needed to create the object code and whatever else is needed to enable its execution in the target environment, starting from its source code, from general-purpose tools that, although not part of the program, are used in the process of creating the object code, and from components normally distributed as part of the operating system for which the object code was created."
If there's any need to name the class of software covered by the
definition, we suggest the term Free-Governments Software', to avoid
potential doubts or confusions arising from potential differences from
the less-formal definition of the termFree Software'. We'd prefer
people to focus on the freedoms rather than on often-misapplied
labels, so we recommend leaving the term out if at all possible.
Until such corrections take place, we position ourselves publicly contrary to the law, since we profoundly dislike the equivocal definition that was meant to be that of Free Software, even though it uses a similar and less appropriate term open software. We understand, however, that our dislike obviously is not an argument to make the law unconstitutional: the bad writing, even if it does not codify the implied preference in the Constitution, does not contradict it either.
While the spirit of the law is followed, even if the letter is ineffective, the law will serve the common good, bringing great savings to the public coffers, if not in the very short term, because of potentially high migration costs, certainly in the long term, in which the advantages of a free market for services and zero cost for additional licenses prevail. Since this is Economic Law matter, we understand that deliberations regarding such choices are not limited to the Union, but also to states and cities.
We argue, thus, that the law is constitutional, even if its juridic effect is nearly nonexistent.
Alexandre Oliva
FSFLA Secretary and Brazilian citizen
Pedro Antonio Dourado de Rezende
FSFLA Board member and Brazilian citizen
Acknowledgements
We wish to thank the contributions of Federico Heinz, FSFLA President and Beatriz Busaniche, FSFLA Treasurer, both Argentinian citizens, and Richard M. Stallman, FSF (USA) President, in the preparation of this document.
Verbatim copying of this document is permitted in any medium, as long as this note is preserved.