Input on anticompetitive characteristic of public code

[Erik Albers]

Hi all,

currently we are working on a brochure for our Public Money? Public Code!
campaign, that we like to use as a help for politicians and decision-takers.
The brochure shall help to clarify common misunderstandings about Free
Software, show positive use-cases and of course the multiple benefits of using
Free Software. Aim is that the reader gets a broad picture and positive
understanding as well as valid arguments why to prefer using Free Software in
public administrations. Size will be around 16 to 24 pages.

One of these pages shall be dedicated to the topic "market distortion /
anticompetition". The point is that a main argument against publishing
publicly financed software developments under a free licence is said to be
"market distortion". The argument says that private actors cannot compete
against "software offered by the state free of charge" and therewith these
publications are to be seen anticompetitive. On the other hand we use to argue
that in fact Free Software fosters competition because there are a way less
dependencies in the Free Software and Open Standards world.

However, we find the similar argumentations ("private actors cannot compete
with services offered by the state free of charge") in a lot of industries.
For example when private media competes with public-service broadcasting. That
is why in Germany they introduced a law to "depublish" publicly financed
news-pages after seven days up to one year (seriously).

Last week I met an IT manager from BBC who told me that his team tries since a
while to publish their developments under free licences. However, they are not
allowed to do so because of the arguments brought up above. In Switzerland in
contrary the same arguments led to some years of legal uncertainty around Open
Justitia, but finally the court allowed the Kanton Bern to publish publicly
financed self-developed software under a free license.

Now my questions:
* How can we oppose the argument that publicly financed software released as
Free Software is anticompetitive?

* What can we bring up on the other hand in favor of publishing as Free
Software from a competitive point of view?
(except the usual non-dependencies)

* What other arguments can be made in that context to balance an even
anticompetitive decision pro Free Software (like public duty to supply,
binding public money with public goods etc)?

* Are there more examples in Europe in that - like in Switzerland - national
courts decided in favor of publishing publicly financed software as Free Software?

Looking forward to your input

Best regards,
   Erik

-- 
No one shall ever be forced to use non-free software
Erik Albers | Communication & Community Coordinator | FSFE
OpenPGP Key-ID: 0x8639DC81 on keys.gnupg.net