Killing me softly

Michael Alan Hamlin

Posted on September 22, 2007

A little support would be helpful…

At first blush, House Bill 1716, entitled Free Open Source Software (FOSS) Act, comes across as just another piece of superfluous legislation in a sea of inconsequential legislative exercises. But it’s not as harmless as it might seem. In fact, it’s dangerous.

The bill is meant to “encourage” the use of open source software in government and the private sector by forcing government agencies to do two things. First, they will be mandated; i.e, forced, to use open source software for 75% of all existing government systems within five years. And all government data must be “in open source format.” While using open source software is often a good thing, arbitrarily dictating how extensively it must be used probably isn’t.

Second, the bill, if it becomes law, will mandate government to promote the use of open source software to the private sector by requiring educational institutions to teach and use such systems; and, by providing support to private sector entities using, promoting, and developing open source software. But that’s already happening. Schools teach and use such systems. And the National Computer Center encourages government agencies to use a version of Linux, called Bayanihan Linux, it developed several years ago.

This is why FOSS is inherently superfluous. Government and the private sector, in many cases with great enthusiasm, are already using open source software. Among the successful Philippine corporations that have embraced Linux and open systems software applications are the Jollibee Group of Companies, SM Prime Holdings, and 2GO Express. And Filipino open source developers such as the well-known and fabulously well-rewarded Winston Damarillo have not only gotten rich developing and selling open source software (albeit in the U.S.), they are helping others to do so as well (here and elsewhere).

The reason successful organizations use open source software is profoundly practical: it enables them to compete more effectively. Jollibee, SM, and 2GO use open source software because it enables them to be world class while reducing systems costs. And the reason these companies began using this software in the first place is that their IT departments are led by smart, motivated, innovative managers. Not because some higher authority required them to do so.

House Bill 1716 shouldn’t be taking up government resources when government has many much more important things to do than meddle in a process that is already proceeding quite well on its own. Doing so would be akin to government suddenly deciding to start meddling in the business process outsourcing industry, which has grown exponentially for more than half a decade, in many respects because government, aside from championing the sector, has left it alone.

But FOSS should be thrown out of the House for a much more serious reason: It seeks to amend the Intellectual Property Code of the Philippines to “exclude computer programs, techniques, and methods in computing and arranging data for use in digital format, including algorithms, protocols, and specifications that are known to form part of open standards or are integral to implementation of open standards.”

If enacted, House Bill 1716 would require Philippine software developers writing open source applications for government agencies to make their source code available to government and competitors. Competitors could then take that source code, without having to invest in its development, and use it to build similar applications, and to compete in future bids with the company that developed the code.

Because development costs are typically spread across multiple projects, the original developer’s capacity to recover development costs would be severely compromised. As a result, the developer may choose to no longer bid for government projects, rely on inferior code in an effort to safeguard its best technology, or increase the costs of its services. None of these alternatives serves government, or constituents, well.

While 1716 is obviously intended to lower software costs for government, corporations, and individuals – at the expense of multinational developers – its effect is to rob Philippine software developers of the right to their own intellectual property.

Given this reality, the Philippine Software Industry Association released a position paper last year suggesting that the decision to invest in proprietary or open source software should be left to private and public-sector managers and their best judgment. That’s good advice. Legislators should be concerned with supporting sectors that create value, not stripping them of that value. Not killing them, softly or otherwise.

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