fsfe-website/documents/peru.en.txt

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

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:

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 free  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 Perù.