Input on anticompetitive characteristic of public code

[Paul Boddie]

On Thursday 21. June 2018 14.33.21 Erik Albers wrote:
> 
> 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.

First of all, Free Software does not necessarily mean "free of charge". There 
is no reason why anyone cannot sell Free Software to public organisations. The 
difference between doing this and selling proprietary software is, of course, 
that the latter puts the public organisation under the control of the software 
supplier, whereas Free Software puts the public organisation in control.

There are very good reasons why we would want public organisations to exercise 
control over their software, many of them the same as those indicating why we 
ourselves wish to have such control. A particularly good one applying to state 
institutions relates to the longevity of systems and data.

One would like to be able to retain the ability to access old and archived 
data without losing such capabilities because a supplier has decided that it 
is not a priority for them. Unlike individual needs in this respect, there may 
be legal requirements applying to branches of the state.

> 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).

It is a common phenomenon that in sectors where public services supposedly 
compete with private companies, those companies will complain about state-
funded competition whilst taking full advantage of all the free things those 
public services produce. Another area where this occurs is in weather 
forecasting and monitoring. I am sure others can provide examples of their 
own.

> 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.

The BBC is a bit special because it has become some kind of state/private 
hybrid with extensive commercial interests. This arrangement happens to suit 
various parties - managers, production companies, suppliers, politicians - and 
it would be interesting to know how the money flows, albeit challenging to 
find out because the organisation is notoriously resistant to honouring 
freedom of information requests, or so I have heard.

Either way, the BBC provides an interesting example of the "having it both 
ways" philosophy that motivates demands for expanded "commercial" involvement. 
Television viewers are effectively taxed, thus providing a large pot of money 
for opportunists to access. Companies have presumably lobbied to make that pot 
of money more accessible to them. They will undoubtedly feel that the role of 
the organisation is to distribute this money and not to do any worthwhile work 
internally.

(Despite being taxed, viewers also do not seem to have any rights to the 
things they are funding. The usual excuse is that the BBC has to license 
content to other markets - including selling things to the taxpaying viewers - 
to make up for a funding deficit and that the viewers do not collectively 
cover all of the organisation's costs. No-one considers that an alternative, 
fairer, more sustainable model might work.)

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

By noting that suppliers could provide Free Software to public organisations. 
This would still be publicly-financed software. The issue of public 
organisations producing and releasing Free Software themselves is a separate 
one. Some might claim that such organisations should not be in the business of 
producing software, but that is just an opinion, not a statement of 
indisputable fact.

> * 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)

I would start with the issue of control. Public organisations can waste a lot 
of money on projects because they have neither control over the projects nor 
control over the software to be delivered. Developing and consuming Free 
Software helps re-establish this control.

It could then be noted that by publishing Free Software, organisations make 
themselves more available for collaboration, and this might then lead to 
opportunities for those willing to provide services enhancing this software, 
either for the organisation concerned or for others.

Particularly when opportunities are made elsewhere, Free Software development 
and publication can be regarded as a form of "technology transfer", albeit one 
that is transparent and fair, as opposed to the usual form that gets advocated 
where "spin-off" companies are created, "intellectual property" is licensed in 
a restrictive way, and one gets the impression that the aim of the exercise is 
to privatise publicly-funded work and to try and make a few well-connected 
people wealthy.

I'll leave the other questions for now.

Paul