March 3, 2004

Why software preference mandates hurt us all

Author: Bob Kramer, Initiative for Software Choice

Editor's note: According to Bob Kramer, "...the Initiative for Software Choice (ISC) was created to address the proliferation of restrictive 'preference' proposals springing up across the globe. Virtually all of these proposals have been structured to favor free and/or open source software (OSS) over other viable alternatives in government procurements." Kramer doesn't think this is a good idea. He wrote this article in response to Joe Barr's recent NewsForge commentary about the United Nations World Summit on Information Society.

However you define the IT industry, it's clear we've brought almost unbelievable, positive change to our planet. Today, virtually billions of individuals depend in some measure on the products and services we provide to live better lives. This success has been largely self-realized. Paradoxically, however, our success as an industry probably could not have happened without government.

Not because of what government has done, but rather what it hasn't done. Direct regulation of the IT industry has been virtually non-existent. This has helped our business immensely, allowing us to grow -- free of arbitrary rules -- to the benefit of customers worldwide.

That is, until recently.

Some government policymakers now think that how we design our wares should be the deciding factor in making their IT acquisitions. With growing frequency, a handful of "exotic regions" (as one writer notes) have proposed or have passed regulations that seek to mandate how we develop our products and/or conduct our core business practices, clearly seeking to send a signal well beyond the confines of their own markets.

Within this context, the Initiative for Software Choice (ISC) was created to address the proliferation of restrictive "preference" proposals springing up across the globe. Virtually all of these proposals have been structured to favor free and/or open source software (OSS) over other viable alternatives in government procurements.

While this "legislative-marketing" has helped some of our members by creating free and OSS sales opportunities, its ever-shifting, regulation-oriented signal gives us pause. We don't care what gets chosen in the marketplace. What we do care about, however, is the fact that procurement preferences almost always boil down to nothing more than technology mandates, something we know harms the industry, taxpayers, and the wellspring of our success -- innovation.

Taken in their most benign form, legislative directives about software procurements simply state that OSS should be considered. From the taxpayers' standpoint, they had better be considered, especially if they're better than the alternatives. However, most of these proposals go further by requiring that governments use only OSS, thereby reducing choice without regard to the realities of the IT marketplace.

"Soft preference" or "hard preference" -- it doesn't matter. Both approaches (as well as those that fall in between) needlessly seek to use law, regulation, or mandate to short circuit the functions of the working software market.


"Preference" policies remove merit from the process by using access to source code as an automatic indicator of IT project success. Where this happens, the best, most cost-effective solution is unlikely to be found because the universe of choices has been preordained. With fewer options on the table, "preference" laws undermine the effectiveness of public IT administrations because the full menu of viable options -- commercial, and yes, even hybrid options -- are largely eliminated from consideration at the outset.

If you're a commercial or hybrid developer (and, independent research shows that there's an overwhelming chance you are), well, you're effectively banned from the government marketplace. That's bad enough. But at a more fundamental level, "preference" provisions do something far more harmful: They undermine our system of intellectual property protection.

Endorsed by the UN, OECD nations, the EU, the WTO, and much of the developing world, intellectual property protection has benefited mankind. Strong intellectual property laws motivate risk-taking and innovation by providing developers with a tested means to get a return on their investment. Governments, companies, and people of all stripes use the model because it works, period.

The IT industry has come into its own largely on the strength of our intellectual property laws. That doesn't mean, however, that other, non-proprietary means of satisfying customer needs present invalid or imperfect alternatives. They are simply different. The market will choose what methods work and where. Regardless of the orthodoxy of any given EULA, we will prosper as an industry to the extent our businesses can provide demonstrated value and certainty to our customers.

Mandating IT choices based on a development or licensing model will not accomplish this goal. Worse, forcing customers to use one model may well prevent them from obtaining the best life-cycle value on products for the dollars spent.

That's not how our vibrant IT-based economy was built, and such a tactic will not benefit our customers, much less our interdependent industry.

Right now, virtually every government worldwide has the tools they need to make informed, merit-based choices from the exceedingly competitive, global IT market. Where this "evolutionary model" exists, governments, taxpayers and the industry reap tremendous benefits from having the ability to choose between competing solutions.

Ronald Bergman, Deputy Commissioner of New York City's Department of Information Technology and Telecommunications, put it best:

"Our goal is to build technological solutions that meet agency business needs. Agencies must retain accountability for considering all appropriate possibilities, and then implement the solution that represents the best fit and best value to the City. This could be an open source solution, a proprietary one, or a mixture of both.

"Fair and open competition based on an assessment of needs, not legislated preferences, should be the hallmark of our product choices. Our approach toward procurement must therefore be as flexible and inclusive as possible. This carries with it little risk and widens choice."

We couldn't agree more.

Thankfully, the number of governments passing restrictive mandates remains few. Maybe the efforts of the ISC -- aided in part by admonitions against "preference" legislation from such OSS stalwarts as Tim O'Reilly and Eric Raymond -- are gaining some headway. Unfettered by arbitrary limitations, governments have more choices and are thus clearly better off. We hope, and we believe, that legislators are getting the message.

Still, many aren't. And wherever this occurs, the ISC stands ready to counsel policymakers to stick with what works -- that is, a non-regulatory course, which relies on "best-of-breed," not how our products and services were bred.

Bob Kramer is Executive Director of the Initiative for Software Choice. The ISC is global coalition of large and small companies committed to advancing the concept that multiple competing software markets should be allowed to develop and flourish unimpeded by government preference or mandate.


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