Free Software Matters:
Free Government, II

Eben Moglen*

October 30, 2002

As I wrote last month, we're in the middle of a quite intense controversy in the United States over the use of free software by government, as a result of a global movement towards public adoption of free software--a movement that has Microsoft very worried indeed.

Now that hundreds of national, provincial and local government agencies across the globe have awakened to the enormous social and economic advantages of running free software, the proprietary monopolist is in for a very rough bout of competition. As has already been shown in the commercial and financial sectors, once machines have been converted to free software, they never go back to running a proprietary operating system, and they aren't candidates for the installation of a proprietary office suite, either, much less subscription services for automatic updating, which is the new Microsoft business model. And as government agencies desert the proprietary supplier of server operating systems, they are also going to be willing to consider desktop alternatives that corporate users so far have not widely adopted. Overall, as I've argued before, that imperils Microsoft's grip on the largest single sector of software users.

But it is not feasible for Microsoft to argue outright against use of free software by government agencies. Not even in the US--let alone elsewhere in the world--will there be serious willingness to subsidize Microsoft from taxpayer pockets by buying software at proprietary markups, once officials and legislators realize that better is available at marginal cost. So Microsoft has been making two other arguments: first, that government use of free software shouldn't be required by legislation; and second, that government shouldn't conduct any research on or publication of software, or fund any such research or publication by government contractors and universities, under the GPL. Each of these two contentions is about less than meets the eye; insubstantial as they are on their own merits, they are really part of a larger campaign to achieve indirectly what even Microsoft has not the effrontery to demand in the light of day.

At first impression, Microsoft has a point about legislation to prohibit government use of proprietary software. Statutes that would make free software illegal in the interest of greater protection for the owners of movie and music copyrights are unacceptable to us, after all, and it seems just as reasonable for Microsoft or other proprietary software makers to object to legislation that would exclude them from the government market.

But the matter is a little less simple than that. It may be bad policy under certain circumstances, but it is not inherently objectionable for government agencies to be required to take the lowest bid on any given contract; and the provider of a Debian-based fully redistributable system containing only free software, for example, can reduce the unit cost of software to zero. Government agencies or legislators can also legitimately decide that maintainability and extensibility are essential aspects of the software government acquires, and may therefore specify that fully modifiable source code must accompany software government buys. Either of these grounds might legitimately result in legislation or regulation that would have the effect of making it difficult for proprietary suppliers to compete effectively against free software for government contracts.

Microsoft's second contention has been that employment of the GPL in government-funded research will destroy innovation, by preventing positive outcomes from government research from being effectively commercialized. What would have happened, Microsoft asked, if TCP/IP, or other basic Internet protocols, had been implemented by federal researchers under the GPL? Apparently we were supposed to believe that this would somehow have kept the Internet from happening.

Microsoft apparently persuaded several members of the US House of Representatives of this nonsense earlier this month; led by a Congressman who has accepted substantial campaign donations from Microsoft, the group sent a letter to the White House urging adoption of a policy prohibiting use of the GPL for licensing of software developed by the US government. The Congressmen and their staffs were later surprised to realize that copyright law isn't the same as patent law: if government releases a particular implementation of a good idea under the GPL, anyone who wants to make proprietary software embodying the same technology has only to write an original program of his own, as Microsoft certainly would with respect to the original example of a TCP/IP or other protocol stack. Then the Congressmen also realized that in the US there is no copyright in federal government works of authorship, which Microsoft had apparently overlooked all along, and the whole anti-GPL campaign fizzled.

These recent Microsoft maneuvers in Washington, DC aren't particularly adroit, and they haven't been particularly effective. But the real goal of the campaign remains unmodified: to impede the adoption of the free software idea by government agencies around the world. As government switches to free software it ensures greater interoperability with civil society, invests in human capital by encouraging its citizens to learn from and improve the software they use, and saves taxpayers money by getting the best software at the lowest price. But resistance from the monopoly and its allies in the proprietary software world will be fierce, and those of us who understand the values free software represents must be prepared to explain to legislators, public officials, and other voters why, when it comes to doing the public's business, Free Software Matters.

*  Eben Moglen is professor of law at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation. You can read more of his writing at

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