Currently we are working on a brochure for our Public Money? Public Code! campaign, that we like to use as a help for politicians and decision-takers. The brochure shall help to clarify common misunderstandings about Free Software, show positive use-cases and of course the multiple benefits of using Free Software. One of these pages shall counter the claim that private actors cannot compete against Free Software published by the state, financed with public money. Find more information below or directly join the discussion in English or German on the FSFE Mailinglists.
One of the pages in our brochure about Public Money? Public Code! shall be dedicated to the topic “market distortion / anticompetition”. The point is that a main argument against publishing publicly financed software developments under a free licence is said to be “market distortion”. The argument says that private actors cannot compete against “software offered by the state free of charge” and therewith these publications are to be seen anticompetitive. On the other hand we use to argue that in fact Free Software fosters competition because there are a way less dependencies in the Free Software and Open Standards world.
However, we find the similar argumentations (“private actors cannot compete with services offered by the state free of charge”) in a lot of industries. For example when private media competes with public-service broadcasting. That is why in Germany they introduced a law to “depublish” publicly financed news-pages after seven days up to one year (seriously).
Last week I met an IT manager from BBC who told me that his team tries since a while to publish their developments under free licences. However, they are not allowed to do so because of the arguments brought up above. In Switzerland in contrary the same arguments led to some years of legal uncertainty around Open Justitia, but finally the court allowed the Kanton Bern to publish publicly financed self-developed software under a free license.
Now the questions:
- How can we oppose the argument that publicly financed software released as Free Software is anticompetitive?
- What can we bring up on the other hand in favor of publishing as Free Software from a competitive point of view? (except the usual non-dependencies)
- What other arguments can be made in that context to balance an even anticompetitive decision pro Free Software (like public duty to supply, binding public money with public goods etc)?
- Are there more examples in Europe in that – like in Switzerland – national courts decided in favor of publishing publicly financed software as Free Software?