Re: FIND Dr.NUÑEZ LETTER HERE!

[Jeff]

Here... Just so we don't have to follow links that might not work in a
month:

MS letter to Nuñez:
----------------------------------------------
San Isidro, March 21st 2002

Mr:
Edgar Villanueva Nuñez
Congressman of the Republic of Peru

Present.-

Dear sir:

First of all, we want to thank you for the chance you gave us to inform you
about our work in this country for benefit of the public sector, always
looking for the best ways to implement programs that will let us consolidate
the initiatives of modernization and transparency in the State.

In fact, thanks to our meeting today you are aware of our global
achievements at the international level in the design of new services for
the citizen, within the framework of a model State that respects and
protects intellectual property.

The actions we talked about are part of a global initiative, and today there
exist several experiences which have let us collaborate with programs
supporting the State and community in the adoption of technology as a
strategic element impacting the quality of life of the citizens.

Furthermore, as arranged in this meeting, we assisted the forum organized in
the Congress on March 6th regarding the law project that you are leading,
wherein we got the chance to listen to several presentations which lead us
now to explain our position so you have a wider grasp of the real situation.

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.

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, violating the base principles of the "Law
of State Contracting and Aquisitions" (Number 26850)

So, by compelling the State to favour 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.

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.

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.

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 truely beneficial use of the
technology. The other 92% consists of: installation costs, enabling,
support, maintenance, administration, and down-time.

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.

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.

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 truely beneficial use of the
technology. The other 92% consists of: installation costs, enabling,
support, maintenance, administration, and down-time.

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.

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.

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.

The bill demotivates 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 incentivates the use of open source,
software programmers lose their intellectual property rights and their main
source of payment.

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.

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.

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?

I really want to thank you for your attention to this letter, and we want to
reiterate our interest in meeting you to explain to you in more detail our
point of view about the bill you have presented, and to be at your complete
disposal to share experiences and information which we are sure can help
better analyse and implement an initiative looking to modernization and
transparency of the State for the benefit of the citizen.

Sincerely,

Juan Alberto González

General Manager
Microsoft Perú

-----------------------------------------------

And the reply from Nuñez:

-----------------------------------------------

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:


  a.. Free access to public information by the citizen.
  b.. Permanence of public data.
  c.. 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:


a.. the law does not forbid the production of proprietary software
a.. the law does not forbid the sale of proprietary software
a.. the law does not specify which concrete software to use
a.. the law does not dictate the supplier from whom software will be bought
a.. 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:

As 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.

---------------------------------------------


And there we have it.

:)

Jeff




----- Original Message -----
From: "Carl Parrish" <cparrish@cox.net>
To: "Plug-discuss" <plug-discuss@lists.plug.phoenix.az.us>
Sent: Tuesday, May 07, 2002 7:48 AM
Subject: Re: FIND Dr.NUÑEZ LETTER HERE!


| On Mon, 2002-05-06 at 23:13, Alan Dayley wrote:
| > Microsoft's argument is refuted by Dr. Nunez in his letter, pointing out
that
| > the proposed law does not discriminate WHO can provide the software
| > (non-discriminatory) but only HOW it must be provided (free as in
freedom).
| >
| > The "how" has nothing to do with discrimination.  MS would be welcome to
| > provide software if it is provided in a free "as in freedom" manner
(open
| > source, modifiable by the customer, open data standards).  If that
excludes
| > MS because their chosen business model does not fit, that is not
| > discrimination, it is a business process criteria.
| >
| > I hope this law passes in Peru.  I wish it could pass here.
| >
| > Alan
| >
|
|
| Make sure your congress person (and anyone else you may know in the
| public sector ) gets a copy of the letter.
|
| Carl P.
| P.S. does anyone have the link where you can look up your senators email
| address handy?
|
|
| ________________________________________________
| See http://PLUG.phoenix.az.us/navigator-mail.shtml if your mail doesn't
post to the list quickly and you use Netscape to write mail.
|
| PLUG-discuss mailing list  -  PLUG-discuss@lists.plug.phoenix.az.us
| http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss