September 13, 2004

An open letter to California's governor

Author: Shlomi Fish

Dear Mr. Schwarzenegger,

The purpose of this letter is two-fold:

  1. To congratulate you
    for your choice to utilize open source software in California in order to reduce operational costs.
  2. To warn you that the path you take in a different section of the cost-reducing white paper is dangerous and stands against the ideology of open source enthusiasts.

I am not a U.S. citizen and do not live
in California. Nevertheless, as a user, developer, and advocate of
open source software, I feel I have the right to express this
opinion.

First of all, the compliment: Using open source software within California will not only reduce cost but also increase productivity and give a better user experience. While
a few studies seem to have shown that open source software
has a lower total cost of ownership than the commercial equivalents, I refer you to
the Check the Facts campaign, by Hamakor, the Israeli NPO for free and open source software. This study (in Hebrew only, unfortunately) debunks these claims.

(Some non-open source software may be
superior to its open source counterparts and may provide a better
TCO. It's not necessary to prohibit using it, just to make sure
open source software is used whenever it is possible and appropriate.)

I sincerely hope that the State of California will not give in to
lobbyists of proprietary software vendors and will maintain the
benevolent stance it has chosen.

Now to the other issue: I noticed in a
different section
of the document some disturbing plans
and ideological errors that are not compatible with the free and
open source software ideology:

  1. "Intellectual Property" -- There is no such thing as
    intellectual property. Copyrights, trademarks, patents, and trade
    secrets are all valid, but serve different purposes and are
    different things. They should not be placed under the same
    umbrella.

    Another harmful aspect of the label is associating them with
    property. Copyrights, patents, and the such are not property,
    neither legally nor morally. Infringing on them does not
    harm the original invention or copy, which is the case
    for theft and other violations of one's tangible property.
    While it isn't ethical to violate copyrights, trademarks,
    or patents, it is still much less harmful than violations
    of one's physical property. Therefore, please avoid using this term in the state's
    publications from now on.

  2. Using patents to garner money -- This is probably a violation
    of federal law, but one still has to respond to it, because even
    if this is the case, its presence in the document is disturbing.
    Many patents and especially the vast majority of software
    patents are harmful and damaging. Most of them have prior art,
    and a lot of the others are quite trivial and meaningless.
    Issuing software patents and trying to enforce them is perceived
    by the open source community as a clear sign of being a software
    parasite. It is my hope that the State of California will reverse this
    decision and stress that it won't follow this path.

    A final note regarding this issue is that it is that you
    probably won't garner much revenue this way anyway. It is very
    hard to make money out of software patents. Most software
    patents are issued by companies to protect themselves from future
    patent violation suits, and most of them are not truly enforcable.
    There is a very small number of patents that are valid and hold.

  3. Copyright violations -- I think you misunderstood what
    copyright means there. The only time copyright can be enforced
    in regards to software is when the violator misuses
    a copy of the copyrighted code. Using different software
    that is similar in functionality (or even identical) which is
    not derived from the original code does not constitute
    violation.

    Or did you meant that you wish to sell this software? Again,
    there may be issues with the federal law here. Still,
    selling software that was developed for in-house use of the
    State of California is OK, as long as it does not
    concern the interaction of the public with the state. If it
    does, then it must be released under a suitable open source
    license, as otherwise California citizens and residents
    are at the mercy of the state.

Once again, congratulations on taking this bold move of switching
the State of California to using open source software. Just please
correct the harmful elements.

Sincerely yours,

Shlomi Fish

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