Interesting correspondence in Peru (LONG)

[Buddy Brannan]

Hey guys,

From this week's lWN (www.lwn.net); Looks like there are folks
fighting the good fight here! Note these are translations from
Spanish. No, I don't know who provided them, but there are links to
the original Spanish on the LWN site.

Enjoy!
-- 
Buddy Brannan, KB5ELV/3  | I choose you to take up all of my time.
Email: davros at ycardz.com | I choose you because you're funny and kind
                         | I want easy people from now on.
                         | --the Nields


From Microsoft, written to some fellow in the Peruvian government:


   San Isidro, March 21st 2002

   Mr. Edgar Villanueva Nuñez
   Congressman of the Republic of Perú

   Dear sir:

   First of all, we want to thank you for the chance you gave us to
   inform you about our work in the Republic to the benefit of the public
   sector. We are always looking for the best way to implement programs
   to complete the State's initiatives of modernization and transparency.
   Thanks to our meeting, today you are aware of our achievements at the
   international level in the design of new services for the citizen, and
   the framework of a model State that respects and protects intellectual
   property.

   These programs, which we discussed, are part of a global initiative.
   We have experience collaborating with states and communities in the
   adoption of technology as an strategic element to improve all
   citizens' lives.

   As we arranged in our meeting, we attended the forum organized in the
   Congress of the Republic on March 6th, regarding the law that you have
   proposed. There we got the chance to listen to several presentations
   on the subject. We would now like to present our position so that you
   have a better view of the real situation.
    1. Your proposal mandates that every public organization exclusively
       use free software, also known as open-source software. This is
       something which trangresses the principles of equality before the
       law, of no discrimination, of free private initiative, and of
       freedom of industry and contracting, which are protected by the
       Constitution.
    2. Your proposal, by making mandatory the use of open source
       software, establishes discriminatory and non-competitive treatment
       in contracting and acquisitions by public organizations, violating
       the basic principles of the "Law of State Contracting and
       Acquisitions" (Number 26850).
    3. By forcing the State to favor a business model supporting
       exclusively open source software, your proposal will discourage
       local and international software manufacturers who make real and
       important investments in the country, create a significant number
       of direct and indirect jobs, and thus contribute to the national
       income. In contrast, open source software development always has a
       lesser benefit to the economy, since it mainly creates jobs in the
       service sector.
    4. Your proposal imposes the use of open source software without
       considering the risks this carries to security, warranty, and
       possible violation of the intellectual property rights of third
       parties.
    5. It erroneously assumes that open source software is free software,
       that is, without cost, and therefore arrives at incorrect
       conclusions about money saved by the State. It has no cost-benefit
       analysis to back up this assumption.
    6. It is wrong to think that open source software is free. Research
       by the Gartner Group (an important market researcher in the
       technology world, well-known worldwide) has shown that the cost of
       software acquisition (operating system and applications) is only
       8% of the total cost of ownership that enterprises and
       organizations must face as a consequence of the rational and
       productive use of technology. The other 92% is costs of
       installation, training, support, maintenance, management, and
       repairs after failures.
    7. One of the arguments supporting your proposal is the supposed
       cheapness of open source software when compared to commercial
       software, without considering the possibility of volume licensing
       models [for commercial software]. The State can really benefit
       from these, as other countries have.
    8. Additionally, the approach chosen by your project (i) is clearly
       more expensive because of the high costs of migration; (ii) risks
       loss of interoperability among information systems, both inside
       the State and between the State and the public sector, due to the
       many different distributions of open source software on the
       market.
    9. In most cases, open source software does not offer adequate levels
       of service to achieve better productivity by its users, nor does
       it offer warranties from well-known manufacturers. These things
       have caused many public entities to go back on their decisions to
       use open source software; they are now using commercial software
       [again] in its place.
   10. This project discourages creativity in the Peruvian software
       industry, which sells US$40 million worth of goods every year, $4
       million of that exported (10th place in the ranking of Peruvian
       exports, more than handcrafted goods) and is a source of highly
       skilled jobs. With a law encouraging the use of open source
       software, programmers lose their intellectual property rights and
       their most important source of remuneration.
   11. Since open source software can be freely distributed, it cannot
       make any money for its developers by exportation. In this way, it
       weakens the multiplier effect of software sales to other countries
       and stunts the growth of this local industry, which the State
       should be stimulating.
   12. In the forum, the importance of the use of open source software in
       education was discussed, without commenting on the complete
       failure of this initiative in countries like Mexico. There, the
       same State officials who supported the project now say that open
       source software did not provide a learning experience to children
       in the schools [that participated]. Adequate levels of training
       [for the teachers?] was not available nationwide, inadequate
       support for the platform was provided, and the software was not
       integrated well enough with existing school computer systems.
   13. If opensource software fullfils all the requirements of State
       entities, why should a law be needed to adopt its use? Shouldn't
       the market freely choose which products provide more benefits and
       value?

   I want to thank you for your attention to this letter. We would like
   to reiterate our interest in meeting you again, to present in more
   detail our position with regard to your project. We are at your
   complete disposition to share experience and information, which we are
   sure can help with planning and implementation of a better initiative
   for the modernization and transparency of the State to the benefit of
   its citizens.

   Sincerely,

   Juan Alberto González

   General Manager
   Microsoft Perú



And the Congressman's reply: (good for him!) 


   Lima, 8th of April, 2002
   To: Señor JUAN ALBERTO GONZÁLEZ
   General Manager of Microsoft Perú

   Dear Sir:

   First of all, I thank you for your letter of March 25, 2002 in which
   you state the official position of Microsoft relative to Bill Number
   1609, Free Software in Public Administration, which is indubitably
   inspired by the desire for Peru to find a suitable place in the global
   technological context. In the same spirit, and convinced that we will
   find the best solutions through an exchange of clear and open ideas, I
   will take this opportunity to reply to the commentaries included in
   your letter.

   While acknowledging that opinions such as yours constitute a
   significant contribution, it would have been even more worthwhile for
   me if, rather than formulating objections of a general nature (which
   we will analyze in detail later) you had gathered solid arguments for
   the advantages that proprietary software could bring to the Peruvian
   State, and to its citizens in general, since this would have allowed a
   more enlightening exchange in respect of each of our positions.

   With the aim of creating an orderly debate, we will assume that what
   you call "open source software" is what the Bill defines as "free
   software", since there exists software for which the source code is
   distributed together with the program, but which does not fall within
   the definition established by the Bill; and that what you call
   "commercial software" is what the Bill defines as "proprietary" or
   "unfree", given that there exists free software which is sold in the
   market for a price like any other good or service.

   It is also necessary to make it clear that the aim of the Bill we are
   discussing is not directly related to the amount of direct savings
   that can by made by using free software in state institutions. That is
   in any case a marginal aggregate value, but in no way is it the chief
   focus of the Bill. The basic principles which inspire the Bill are
   linked to the basic guarantees of a state of law, such as:

     * Free access to public information by the citizen.
     * Permanence of public data.
     * Security of the State and citizens.

   To guarantee the free access of citizens to public information, it is
   indispensable that the encoding of data is not tied to a single
   provider. The use of standard and open formats gives a guarantee of
   this free access, if necessary through the creation of compatible free
   software.

   To guarantee the permanence of public data, it is necessary that the
   usability and maintenance of the software does not depend on the
   goodwill of the suppliers, or on the monopoly conditions imposed by
   them. For this reason the State needs systems the development of which
   can be guaranteed due to the availability of the source code.

   To guarantee national security or the security of the State, it is
   indispensable to be able to rely on systems without elements which
   allow control from a distance or the undesired transmission of
   information to third parties. Systems with source code freely
   accessible to the public are required to allow their inspection by the
   State itself, by the citizens, and by a large number of independent
   experts throughout the world. Our proposal brings further security,
   since the knowledge of the source code will eliminate the growing
   number of programs with *spy code*.

   In the same way, our proposal strengthens the security of the
   citizens, both in their role as legitimate owners of information
   managed by the state, and in their role as consumers. In this second
   case, by allowing the growth of a widespread availability of free
   software not containing *spy code* able to put at risk privacy and
   individual freedoms.

   In this sense, the Bill is limited to establishing the conditions
   under which the state bodies will obtain software in the future, that
   is, in a way compatible with these basic principles.

   From reading the Bill it will be clear that once passed:

     the law does not forbid the production of proprietary software

     the law does not forbid the sale of proprietary software

     the law does not specify which concrete software to use

     the law does not dictate the supplier from whom software will be
   bought

     the law does not limit the terms under which a software product can
   be licensed.

   What the Bill does express clearly, is that, for software to be
   acceptable for the state it is not enough that it is technically
   capable of fulfilling a task, but that further the contractual
   conditions must satisfy a series of requirements regarding the
   license, without which the State cannot guarantee the citizen adequate
   processing of his data, watching over its integrity, confidentiality,
   and accessibility throughout time, as these are very critical aspects
   for its normal functioning.

   We agree, Mr. Gonzalez, that information and communication technology
   have a significant impact on the quality of life of the citizens
   (whether it be positive or negative). We surely also agree that the
   basic values I have pointed out above are fundamental in a democratic
   state like Peru. So we are very interested to know of any other way of
   guaranteeing these principles, other than through the use of free
   software in the terms defined by the Bill.

   As for the observations you have made, we will now go on to analyze
   them in detail:

   Firstly, you point out that: "1. The bill makes it compulsory for all
   public bodies to use only free software, that is to say open source
   software, which breaches the principles of equality before the law,
   that of non-discrimination and the right of free private enterprise,
   freedom of industry and of contract, protected by the constitution."

   This understanding is in error. The Bill in no way affects the rights
   you list; it limits itself entirely to establishing conditions for the
   use of software on the part of state institutions, without in any way
   meddling in private sector transactions. It is a well established
   principle that the State does not enjoy the wide spectrum of
   contractual freedom of the private sector, as it is limited in its
   actions precisely by the requirement for transparency of public acts;
   and in this sense, the preservation of the greater common interest
   must prevail when legislating on the matter.

   The Bill protects equality under the law, since no natural or legal
   person is excluded from the right of offering these goods to the State
   under the conditions defined in the Bill and without more limitations
   than those established by the Law of State Contracts and Purchasing
   (T.U.O. by Supreme Decree No. 012-2001-PCM).

   The Bill does not introduce any discrimination whatever, since it only
   establishes *how* the goods have to be provided (which is a state
   power) and not *who* has to provide them (which would effectively be
   discriminatory, if restrictions based on national origin, race
   religion, ideology, sexual preference etc. were imposed). On the
   contrary, the Bill is decidedly antidiscriminatory. This is so because
   by defining with no room for doubt the conditions for the provision of
   software, it prevents state bodies from using software which has a
   license including discriminatory conditions.

   It should be obvious from the preceding two paragraphs that the Bill
   does not harm free private enterprise, since the latter can always
   choose under what conditions it will produce software; some of these
   will be acceptable to the State, and others will not be since they
   contradict the guarantee of the basic principles listed above. This
   free initiative is of course compatible with the freedom of industry
   and freedom of contract (in the limited form in which the State can
   exercise the latter). Any private subject can produce software under
   the conditions which the State requires, or can refrain from doing so.
   Nobody is forced to adopt a model of production, but if they wish to
   provide software to the State, they must provide the mechanisms which
   guarantee the basic principles, and which are those described in the
   Bill.

   By way of an example: nothing in the text of the Bill would prevent
   your company offering the State bodies an office "suite", under the
   conditions defined in the Bill and setting the price that you consider
   satisfactory. If you did not, it would not be due to restrictions
   imposed by the law, but to business decisions relative to the method
   of commercializing your products, decisions with which the State is
   not involved.

   To continue; you note that:" 2. The bill, by making the use of open
   source software compulsory, would establish discriminatory and non
   competitive practices in the contracting and purchasing by public
   bodies..."

   This statement is just a reiteration of the previous one, and so the
   response can be found above. However, let us concern ourselves for a
   moment with your comment regarding "non-competitive ... practices."

   Of course, in defining any kind of purchase, the buyer sets conditions
   which relate to the proposed use of the good or service. From the
   start, this excludes certain manufacturers from the possibility of
   competing, but does not exclude them "a priori", but rather based on a
   series of principles determined by the autonomous will of the
   purchaser, and so the process takes place in conformance with the law.
   And in the Bill it is established that *no one* is excluded from
   competing as far as he guarantees the fulfillment of the basic
   principles.

   Furthermore, the Bill *stimulates* competition, since it tends to
   generate a supply of software with better conditions of usability, and
   to better existing work, in a model of continuous improvement.

   On the other hand, the central aspect of competivity is the chance to
   provide better choices to the consumer. Now, it is impossible to
   ignore the fact that marketing does not play a neutral role when the
   product is offered on the market (since accepting the opposite would
   lead one to suppose that firms' expenses in marketing lack any sense),
   and that therefore a significant expense under this heading can
   influence the decisions of the purchaser. This influence of marketing
   is in large measure reduced by the bill that we are backing, since the
   choice within the framework proposed is based on the *technical
   merits* of the product and not on the effort put into
   commercialization by the producer; in this sense, competitiveness is
   increased, since the smallest software producer can compete on equal
   terms with the most powerful corporations.

   It is necessary to stress that there is no position more
   anti-competitive than that of the big software producers, which
   frequently abuse their dominant position, since in innumerable cases
   they propose as a solution to problems raised by users: "update your
   software to the new version" (at the user's expense, naturally);
   furthermore, it is common to find arbitrary cessation of technical
   help for products, which, in the provider's judgment alone, are "old";
   and so, to receive any kind of technical assistance, the user finds
   himself forced to migrate to new versions (with non-trivial costs,
   especially as changes in hardware platform are often involved). And as
   the whole infrastructure is based on proprietary data formats, the
   user stays "trapped" in the need to continue using products from the
   same supplier, or to make the huge effort to change to another
   environment (probably also proprietary).

   You add: "3. So, by compelling the State to favor a business model
   based entirely on open source, the bill would only discourage the
   local and international manufacturing companies, which are the ones
   which really undertake important expenditures, create a significant
   number of direct and indirect jobs, as well as contributing to the
   GNP, as opposed to a model of open source software which tends to have
   an ever weaker economic impact, since it mainly creates jobs in the
   service sector."

   I do not agree with your statement. Partly because of what you
   yourself point out in paragraph 6 of your letter, regarding the
   relative weight of services in the context of software use. This
   contradiction alone would invalidate your position. The service model,
   adopted by a large number of companies in the software industry, is
   much larger in economic terms, and with a tendency to increase, than
   the licensing of programs.

   On the other hand, the private sector of the economy has the widest
   possible freedom to choose the economic model which best suits its
   interests, even if this freedom of choice is often obscured
   subliminally by the disproportionate expenditure on marketing by the
   producers of proprietary software.

   In addition, a reading of your opinion would lead to the conclusion
   that the State market is crucial and essential for the proprietary
   software industry, to such a point that the choice made by the State
   in this bill would completely eliminate the market for these firms. If
   that is true, we can deduce that the State must be subsidizing the
   proprietary software industry. In the unlikely event that this were
   true, the State would have the right to apply the subsidies in the
   area it considered of greatest social value; it is undeniable, in this
   improbable hypothesis, that if the State decided to subsidize
   software, it would have to do so choosing the free over the
   proprietary, considering its social effect and the rational use of
   taxpayers money.

   In respect of the jobs generated by proprietary software in countries
   like ours, these mainly concern technical tasks of little aggregate
   value; at the local level, the technicians who provide support for
   proprietary software produced by transnational companies do not have
   the possibility of fixing bugs, not necessarily for lack of technical
   capability or of talent, but because they do not have access to the
   source code to fix it. With free software one creates more technically
   qualified employment and a framework of free competence where success
   is only tied to the ability to offer good technical support and
   quality of service, one stimulates the market, and one increases the
   shared fund of knowledge, opening up alternatives to generate services
   of greater total value and a higher quality level, to the benefit of
   all involved: producers, service organizations, and consumers.

   It is a common phenomenon in developing countries that local software
   industries obtain the majority of their takings in the service sector,
   or in the creation of "ad hoc" software. Therefore, any negative
   impact that the application of the Bill might have in this sector will
   be more than compensated by a growth in demand for services (as long
   as these are carried out to high quality standards). If the
   transnational software companies decide not to compete under these new
   rules of the game, it is likely that they will undergo some decrease
   in takings in terms of payment for licenses; however, considering that
   these firms continue to allege that much of the software used by the
   State has been illegally copied, one can see that the impact will not
   be very serious. Certainly, in any case their fortune will be
   determined by market laws, changes in which cannot be avoided; many
   firms traditionally associated with proprietary software have already
   set out on the road (supported by copious expense) of providing
   services associated with free software, which shows that the models
   are not mutually exclusive.

   With this bill the State is deciding that it needs to preserve certain
   fundamental values. And it is deciding this based on its sovereign
   power, without affecting any of the constitutional guarantees. If
   these values could be guaranteed without having to choose a particular
   economic model, the effects of the law would be even more beneficial.
   In any case, it should be clear that the State does not choose an
   economic model; if it happens that there only exists one economic
   model capable of providing software which provides the basic guarantee
   of these principles, this is because of historical circumstances, not
   because of an arbitrary choice of a given model.

   Your letter continues: "4. The bill imposes the use of open source
   software without considering the dangers that this can bring from the
   point of view of security, guarantee, and possible violation of the
   intellectual property rights of third parties."

   Alluding in an abstract way to "the dangers this can bring", without
   specifically mentioning a single one of these supposed dangers, shows
   at the least some lack of knowledge of the topic. So, allow me to
   enlighten you on these points.

   On security:

   National security has already been mentioned in general terms in the
   initial discussion of the basic principles of the bill. In more
   specific terms, relative to the security of the software itself, it is
   well known that all software (whether proprietary or free) contains
   errors or "bugs" (in programmers' slang). But it is also well known
   that the bugs in free software are fewer, and are fixed much more
   quickly, than in proprietary software. It is not in vain that numerous
   public bodies responsible for the IT security of state systems in
   developed countries require the use of free software for the same
   conditions of security and efficiency.

   What is impossible to prove is that proprietary software is more
   secure than free, without the public and open inspection of the
   scientific community and users in general. This demonstration is
   impossible because the model of proprietary software itself prevents
   this analysis, so that any guarantee of security is based only on
   promises of good intentions (biased, by any reckoning) made by the
   producer itself, or its contractors.

   It should be remembered that in many cases, the licensing conditions
   include Non-Disclosure clauses which prevent the user from publicly
   revealing security flaws found in the licensed proprietary product.

   In respect of the guarantee:
   A

   s you know perfectly well, or could find out by reading the "End User
   License Agreement" of the products you license, in the great majority
   of cases the guarantees are limited to replacement of the storage
   medium in case of defects, but in no case is compensation given for
   direct or indirect damages, loss of profits, etc... If as a result of
   a security bug in one of your products, not fixed in time by
   yourselves, an attacker managed to compromise crucial State systems,
   what guarantees, reparations and compensation would your company make
   in accordance with your licensing conditions? The guarantees of
   proprietary software, inasmuch as programs are delivered ``AS IS'',
   that is, in the state in which they are, with no additional
   responsibility of the provider in respect of function, in no way
   differ from those normal with free software.

   On Intellectual Property:

   Questions of intellectual property fall outside the scope of this
   bill, since they are covered by specific other laws. The model of free
   software in no way implies ignorance of these laws, and in fact the
   great majority of free software is covered by copyright. In reality,
   the inclusion of this question in your observations shows your
   confusion in respect of the legal framework in which free software is
   developed. The inclusion of the intellectual property of others in
   works claimed as one's own is not a practice that has been noted in
   the free software community; whereas, unfortunately, it has been in
   the area of proprietary software. As an example, the condemnation by
   the Commercial Court of Nanterre, France, on 27th September 2001 of
   Microsoft Corp. to a penalty of 3 million francs in damages and
   interest, for violation of intellectual property (piracy, to use the
   unfortunate term that your firm commonly uses in its publicity).

   You go on to say that: "The bill uses the concept of open source
   software incorrectly, since it does not necessarily imply that the
   software is free or of zero cost, and so arrives at mistaken
   conclusions regarding State savings, with no cost-benefit analysis to
   validate its position."

   This observation is wrong; in principle, freedom and lack of cost are
   orthogonal concepts: there is software which is proprietary and
   charged for (for example, MS Office), software which is proprietary
   and free of charge (MS Internet Explorer), software which is free and
   charged for (Red Hat, SuSE etc GNU/Linux distributions), software
   which is free and not charged for (Apache, Open Office, Mozilla), and
   even software which can be licensed in a range of combinations
   (MySQL).

   Certainly free software is not necessarily free of charge. And the
   text of the bill does not state that it has to be so, as you will have
   noted after reading it. The definitions included in the Bill state
   clearly *what* should be considered free software, at no point
   referring to freedom from charges. Although the possibility of savings
   in payments for proprietary software licenses are mentioned, the
   foundations of the bill clearly refer to the fundamental guarantees to
   be preserved and to the stimulus to local technological development.
   Given that a democratic State must support these principles, it has no
   other choice than to use software with publicly available source code,
   and to exchange information only in standard formats.

   If the State does not use software with these characteristics, it will
   be weakening basic republican principles. Luckily, free software also
   implies lower total costs; however, even given the hypothesis (easily
   disproved) that it was more expensive than proprietary software, the
   simple existence of an effective free software tool for a particular
   IT function would oblige the State to use it; not by command of this
   Bill, but because of the basic principles we enumerated at the start,
   and which arise from the very essence of the lawful democratic State.

   You continue: "6. It is wrong to think that Open Source Software is
   free of charge. Research by the Gartner Group (an important
   investigator of the technological market recognized at world level)
   has shown that the cost of purchase of software (operating system and
   applications) is only 8% of the total cost which firms and
   institutions take on for a rational and truly beneficial use of the
   technology. The other 92% consists of: installation costs, enabling,
   support, maintenance, administration, and down-time."

   This argument repeats that already given in paragraph 5 and partly
   contradicts paragraph 3. For the sake of brevity we refer to the
   comments on those paragraphs. However, allow me to point out that your
   conclusion is logically false: even if according to Gartner Group the
   cost of software is on average only 8% of the total cost of use, this
   does not in any way deny the existence of software which is free of
   charge, that is, with a licensing cost of zero.

   In addition, in this paragraph you correctly point out that the
   service components and losses due to down-time make up the largest
   part of the total cost of software use, which, as you will note,
   contradicts your statement regarding the small value of services
   suggested in paragraph 3. Now the use of free software contributes
   significantly to reduce the remaining life-cycle costs. This reduction
   in the costs of installation, support etc. can be noted in several
   areas: in the first place, the competitive service model of free
   software, support and maintenance for which can be freely contracted
   out to a range of suppliers competing on the grounds of quality and
   low cost. This is true for installation, enabling, and support, and in
   large part for maintenance. In the second place, due to the
   reproductive characteristics of the model, maintenance carried out for
   an application is easily replicable, without incurring large costs
   (that is, without paying more than once for the same thing) since
   modifications, if one wishes, can be incorporated in the common fund
   of knowledge. Thirdly, the huge costs caused by non-functioning
   software ("blue screens of death", malicious code such as virus,
   worms, and trojans, exceptions, general protection faults and other
   well-known problems) are reduced considerably by using more stable
   software; and it is well known that one of the most notable virtues of
   free software is its stability.

   You further state that: "7. One of the arguments behind the bill is
   the supposed freedom from costs of open-source software, compared with
   the costs of commercial software, without taking into account the fact
   that there exist types of volume licensing which can be highly
   advantageous for the State, as has happened in other countries."

   I have already pointed out that what is in question is not the cost of
   the software but the principles of freedom of information,
   accessibility, and security. These arguments have been covered
   extensively in the preceding paragraphs to which I would refer you.

   On the other hand, there certainly exist types of volume licensing
   (although unfortunately proprietary software does not satisfy the
   basic principles). But as you correctly pointed out in the immediately
   preceding paragraph of your letter, they only manage to reduce the
   impact of a component which makes up no more than 8% of the total.

   You continue: "8. In addition, the alternative adopted by the bill (I)
   is clearly more expensive, due to the high costs of software
   migration, and (II) puts at risk compatibility and interoperability of
   the IT platforms within the State, and between the State and the
   private sector, given the hundreds of versions of open source software
   on the market."

   Let us analyze your statement in two parts. Your first argument, that
   migration implies high costs, is in reality an argument in favor of
   the Bill. Because the more time goes by, the more difficult migration
   to another technology will become; and at the same time, the security
   risks associated with proprietary software will continue to increase.
   In this way, the use of proprietary systems and formats will make the
   State ever more dependent on specific suppliers. Once a policy of
   using free software has been established (which certainly, does imply
   some cost) then on the contrary migration from one system to another
   becomes very simple, since all data is stored in open formats. On the
   other hand, migration to an open software context implies no more
   costs than migration between two different proprietary software
   contexts, which invalidates your argument completely.

   The second argument refers to "problems in interoperability of the IT
   platforms within the State, and between the State and the private
   sector" This statement implies a certain lack of knowledge of the way
   in which free software is built, which does not maximize the
   dependence of the user on a particular platform, as normally happens
   in the realm of proprietary software. Even when there are multiple
   free software distributions, and numerous programs which can be used
   for the same function, interoperability is guaranteed as much by the
   use of standard formats, as required by the bill, as by the
   possibility of creating interoperable software given the availability
   of the source code.

   You then say that: "9. The majority of open source code does not offer
   adequate levels of service nor the guarantee from recognized
   manufacturers of high productivity on the part of the users, which has
   led various public organizations to retract their decision to go with
   an open source software solution and to use commercial software in its
   place."

   This observation is without foundation. In respect of the guarantee,
   your argument was rebutted in the response to paragraph 4. In respect
   of support services, it is possible to use free software without them
   (just as also happens with proprietary software), but anyone who does
   need them can obtain support separately, whether from local firms or
   from international corporations, again just as in the case of
   proprietary software.

   On the other hand, it would contribute greatly to our analysis if you
   could inform us about free software projects *established* in public
   bodies which have already been abandoned in favor of proprietary
   software. We know of a good number of cases where the opposite has
   taken place, but not know of any where what you describe has taken
   place.

   You continue by observing that: "10. The bill discourages the
   creativity of the Peruvian software industry, which invoices 40
   million US$/year, exports 4 million US$ (10th in ranking among
   non-traditional exports, more than handicrafts) and is a source of
   highly qualified employment. With a law that encourages the use of
   open source, software programmers lose their intellectual property
   rights and their main source of payment."

   It is clear enough that nobody is forced to commercialize their code
   as free software. The only thing to take into account is that if it is
   not free software, it cannot be sold to the public sector. This is not
   in any case the main market for the national software industry. We
   covered some questions referring to the influence of the Bill on the
   generation of employment which would be both highly technically
   qualified and in better conditions for competition above, so it seems
   unnecessary to insist on this point.

   What follows in your statement is incorrect. On the one hand, no
   author of free software loses his intellectual property rights, unless
   he expressly wishes to place his work in the public domain. The free
   software movement has always been very respectful of intellectual
   property, and has generated widespread public recognition of its
   authors. Names like those of Richard Stallman, Linus Torvalds, Guido
   van Rossum, Larry Wall, Miguel de Icaza, Andrew Tridgell, Theo de
   Raadt, Andrea Arcangeli, Bruce Perens, Darren Reed, Alan Cox, Eric
   Raymond, and many others, are recognized world-wide for their
   contributions to the development of software that is used today by
   millions of people throughout the world. On the other hand, to say
   that the rewards for authors rights make up the main source of payment
   of Peruvian programmers is in any case a guess, in particular since
   there is no proof to this effect, nor a demonstration of how the use
   of free software by the State would influence these payments.

   You go on to say that: "11. Open source software, since it can be
   distributed without charge, does not allow the generation of income
   for its developers through exports. In this way, the multiplier effect
   of the sale of software to other countries is weakened, and so in turn
   is the growth of the industry, while Government rules ought on the
   contrary to stimulate local industry."

   This statement shows once again complete ignorance of the mechanisms
   of and market for free software. It tries to claim that the market of
   sale of non- exclusive rights for use (sale of licenses) is the only
   possible one for the software industry, when you yourself pointed out
   several paragraphs above that it is not even the most important one.
   The incentives that the bill offers for the growth of a supply of
   better qualified professionals, together with the increase in
   experience that working on a large scale with free software within the
   State will bring for Peruvian technicians, will place them in a highly
   competitive position to offer their services abroad.

   You then state that: "12. In the Forum, the use of open source
   software in education was discussed, without mentioning the complete
   collapse of this initiative in a country like Mexico, where precisely
   the State employees who founded the project now state that open source
   software did not make it possible to offer a learning experience to
   pupils in the schools, did not take into account the capability at a
   national level to give adequate support to the platform, and that the
   software did not and does not allow for the levels of platform
   integration that now exist in schools."

   In fact Mexico has gone into reverse with the Red Escolar (Schools
   Network) project. This is due precisely to the fact that the driving
   forces behind the Mexican project used license costs as their main
   argument, instead of the other reasons specified in our project, which
   are far more essential. Because of this conceptual mistake, and as a
   result of the lack of effective support from the SEP (Secretary of
   State for Public Education), the assumption was made that to implant
   free software in schools it would be enough to drop their software
   budget and send them a CD ROM with Gnu/Linux instead. Of course this
   failed, and it couldn't have been otherwise, just as school
   laboratories fail when they use proprietary software and have no
   budget for implementation and maintenance. That's exactly why our bill
   is not limited to making the use of free software mandatory, but
   recognizes the need to create a viable migration plan, in which the
   State undertakes the technical transition in an orderly way in order
   to then enjoy the advantages of free software.

   You end with a rhetorical question: "13. If open source software
   satisfies all the requirements of State bodies, why do you need a law
   to adopt it? Shouldn't it be the market which decides freely which
   products give most benefits or value?"

   We agree that in the private sector of the economy, it must be the
   market that decides which products to use, and no state interference
   is permissible there. However, in the case of the public sector, the
   reasoning is not the same: as we have already established, the state
   archives, handles, and transmits information which does not belong to
   it, but which is entrusted to it by citizens, who have no alternative
   under the rule of law. As a counterpart to this legal requirement, the
   State must take extreme measures to safeguard the integrity,
   confidentiality, and accessibility of this information. The use of
   proprietary software raises serious doubts as to whether these
   requirements can be fulfilled, lacks conclusive evidence in this
   respect, and so is not suitable for use in the public sector.

   The need for a law is based, firstly, on the realization of the
   fundamental principles listed above in the specific area of software;
   secondly, on the fact that the State is not an ideal homogeneous
   entity, but made up of multiple bodies with varying degrees of
   autonomy in decision making. Given that it is inappropriate to use
   proprietary software, the fact of establishing these rules in law will
   prevent the personal discretion of any state employee from putting at
   risk the information which belongs to citizens. And above all, because
   it constitutes an up-to-date reaffirmation in relation to the means of
   management and communication of information used today, it is based on
   the republican principle of openness to the public.

   In conformance with this universally accepted principle, the citizen
   has the right to know all information held by the State and not
   covered by well- founded declarations of secrecy based on law. Now,
   software deals with information and is itself information. Information
   in a special form, capable of being interpreted by a machine in order
   to execute actions, but crucial information all the same because the
   citizen has a legitimate right to know, for example, how his vote is
   computed or his taxes calculated. And for that he must have free
   access to the source code and be able to prove to his satisfaction the
   programs used for electoral computations or calculation of his taxes.

   I wish you the greatest respect, and would like to repeat that my
   office will always be open for you to expound your point of view to
   whatever level of detail you consider suitable.

   Cordially,
   DR. EDGAR DAVID VILLANUEVA NUÑEZ
   Congressman of the Republic of Perú.