For the 2006 text, please click here.

Software (October 23, 2009)

Context – the nature of software

1. Software consists of coded instructions which direct the operating of a computer or of a network of computers.

2. Computers take many forms including general purpose desktop, laptop and netbook devices, and behind-the-scene servers. They are also found embedded in consumer devices such as mobile phones, DVD players, TV set-top boxes as well as motor vehicles, industrial and domestic equipment, and supermarket checkout tills.

3. Software is not mined, farmed or manufactured. It is always a creative output of specifically skilled authors known as programmers. It is authored.

4. Programmers create software in a social context. They might be individual authors writing software for their own use or for the use of others. More typically they are socially organised, either in a voluntary collaboration organised around a common creative goal or as paid employees within the private, public or NGO sectors.

5. Software as such is neither owned or sold. Copyright laws construct a set of rights around software, such as the right to use, to copy, to inspect and to modify. It is these rights which are bought, sold, leased or given away in the form of licences. Most proprietary software licences grant the user only the right to use the software – usually, but not necessarily, for a fee. These licences have facilitated the growth of a significant software industry in many countries.

6. Free/Libre Open Source Software (FLOSS) licences grant the user the right to use, copy, inspect, distribute and modify the software, frequently with conditions attached. FLOSS has also made a significant contribution to the economy of many countries [FLOSS Impact Study, 2007, Rishab Ghosh and Phillipe Aigrain, http://www.flossimpact.eu/]. The software is frequently integrated into larger software projects with little or no transaction costs e.g. FLOSS is crucial for the growth of the Internet and World Wide Web by providing essential parts to these networks. Software which is available under a FLOSS licence is a public good.

7. Governments, organisations and individuals procure software licences from a wide variety of sources, both proprietary and FLOSS. The capability of different computer programs to communicate and meaningfully exchange data and services is known as interoperability. Interoperability is a necessary requirement to encourage competition, innovation and avoid vendor lock-in.

8. An important determinant of the interoperability of a program or system is its conformance to open standards for data formats and protocols. The use of open standards for public information made available by governments is necessary to ensure that the public is not burdened with the requirement to purchase software licences from particular vendors. In the interest of promoting transparency and accountably, all information held by governments on behalf of the public should be archived using open standards.

9. The granting of patents for software creations creates an atmosphere of uncertainty and risk for both consumers and creators of software which either prevents, or places a tax upon, new software coming to the market. The vast majority of software patent rights are owned by companies in wealthy countries. The recent trend of filing those into so-called developing countries in increasing numbers has the effect of preventing competition from emerging in those countries.

10. Both competition and collaboration in the production of software increase quality and fairness and are good for consumers.

Therefore:

11. Incumbent dominant market players should not be facilitated in preventing new players and business models from emerging. Governments have an obligation to remedy distortions in the market caused by monopolies. Governments derive their legitimacy from the public and should be wholly accountable to the public.

12. Governments have the right, and even the obligation, to base their software procurement policies on open standards.

13. Governments have the right, and even the obligation, to favour that public money is spent in support of the production of public goods, including software. (proactive support of development of free software in research).

14. The advent of hosted software and infrastructure services (cloud computing) has lead to new challenges relating to control and privacy. Portability of consumers’ data and interoperability with competing product services should be provided by cloud computing. (The problem of privacy is vexing. We have no consensus on a solution. )

Topics for further discussion

1. EULA

2. Software as a service

3. Curriculum reform

4. Escrow

5. Bundling/OEM

6. Funding of production of software as a public good

Draft of July 17, 2006

1.Concentration of ownership and control of software operating systems and applications presents risks and dangers to programmers and users.

2.Monopolies or cartel like ownership of PC operating systems and office productivity applications harms users and programmers, and must be addressed by governments, programmers and purchasers of software.

3.Programmers of software need access to certain interface data, in order to design products that work with other products.

4.Some high quality software products, standards and protocols can and will be produced without regard to ownership or control of software code, or any expectation of remuneration or other pecuniary reward from the sale or licensing of the code. On the other hand, some important software products are unlikely to be produced without an expectation of economic rewards.

5.[Consumers agree that infringement of software applications undermines economic incentives for firms to employ programmers to develop certain new products. Programmers agree that excessive prices for software programs contribute to infringement of software copyrights. [PA comment on earlier formulation: I don't agree with the present drafting of 5. I am not in favour of infringing software copyright. In many cases, free software is the obvious solution to avoid infringing on proprietary software copyright. However, there is strictly no evidence that infringement of software copyrights by (whom? missing word in your draft) has "deterred firms from employing programmers to develop new products". In contrast, there is strong evidence that monopoly positions of installed software providers (created including by letting "illegal" copying develop to lock in users) acts as an innovation deterrent within these companies, inducing a predominantly rent-seeking behaviour and the search for innnovation that protects oligopolistic business models (DRMs for instance) instead of providing new useful functionality to users. Patent and other legal or regulatory developments that provide dominant players with weapons of massive deterrence or destruction o course reinforce this trend (as shown be Bessen, Maskin and Hunt).]]

6.Commercial software products should not be designed to lock-in users to particular vendors.

7.Business models for software development should reward programmers for making users better off, and not reward programmers or software publishers for anticompetitive and anti-consumer practices.

8.Open document formats are essential for the development of a competitive and open software industry.

9.Users and programmers should lobby large buyers of software to demand open document formats, and other measures that promote interoperability.

10.Proprietary technologies that undermine the World Wide Web should be discouraged.

11.Experience has shown that the costs of extending patent protection to software exceed the benefits.

12.For any software functionality that is essential to creative, expressive knowledge and innovation activities in today’s or tomorrow’s information society, there should exists, as soon as possible, at least one practical solution that is implemented as FLOSS (free/libre/open source software), and whose usage does not depend on proprietary software. [PA: The legal, standards and interoperability, competition and other points can be derived from this prerequisite. Most cannot be credibly ensured without this being fulfilled. See also number 13, which PA proposed]

13.Consumers and programmers support the legitimacy for governments or other parties to support the creation of missing components of essential FLOSS alternatives, either directly (German policy) or indirectly (research and development policy, other forms of incentives, pro-active competition policy with corrective measures based on irrevocable royalty-free non-IP constrained licenses).