Last year, one of the key themes of this blog was the battle over version 2 of the European Interoperability Framework, and its definition of open standards. As I noted in December, that battle was essentially lost, thanks to they following sentence:
Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software.
The first version, by contrast, had been unequivocal on this point:
The intellectual property – i.e. patents possibly present – of (parts of) the standard is made irrevocably available on a royalty-free basis.
So this was not just a failure to gain a particular wording, but actually a retrograde move by the European Commission, presumably as the result of lobbying. What makes this unfair – and incredibly unwise – is that it tilts the entire procurement landscape in favour of companies pushing proprietary standards, since FRAND generally excludes open source projects in these cases.
There's a government procurement bid going on in Romania for creating the software and infrastructure to modernize criminal records' access within the country and to interoperate with European countries' similar systems.
It is likely to become one of the many overpriced, poorly specified and poorly implemented solutions that are cranked out by companies that would not survive in the private sector but are close to the decision-makers and are tacitly supported by large IT companies whose proprietary software and expensive hardware have key roles such projects. Nothing new here.
What sets it apart however from other cases, at least to my knowledge is that in the general requirements section there's a small paragraph stating:
"All versions of sofware that are part of the offer must not be published under a ‘free software license' - GPL or similar"
For those that are interested, the key phrase in the original [.pdf] is the following:
Versiunea tuturor produselor software din ofertÄƒ trebuie sa nu fie pusÄƒ la dispoziÈ›ie de producÄƒtor sub licenta €•free software license – GPL sau similar.
There are two issues here.
The first is the legality of this move. It's very hard to tell from this distance (and lack of detailed knowledge about the Romanian legal system doesn't help....) whether this kind of discriminatory clause is permissible. I wouldn't have thought so if this were with European funds, but maybe it is if purely national.
But the larger issue, at least for this blog, is why anyone would impose such a restriction. The system seems self-contained, so there would be no issue with the GPL being extended to other code. Moreover, since the program would presumably only be used by the Romanian criminal justice system, the code would not be "distributed", and thus there would be no requirement to share it – anyone got any views/experience on this aspect of procurement?
So in effect there would be no difference from using proprietary code in this case, other than the ability to draw on GPL code, which would allow the people writing this app to draw on existing software, potentially simplifying their task.
On the other hand, distributing the code anyway would produce a number of benefits. For example, others could look at the code and help improve it (not least by finding security issues.) It might be used for other projects, both in Romania, and elsewhere, and would in any case strengthen the open source community in the former by adding to the country's national software commons. Incidentally, these arguments also apply to other countries' procurement policies: it would be great to see the UK government commissioning and releasing GPL'd code, for example.
So, Romania, what's the problem?