30 March 2010

Italian Court OKs Preference for Open Source

Here's a big win for open source: the Italian Constitutional Court has approved a law in Piedmont giving preference to open source, ruling that it is not anti-competitive:

Just over a year ago, the Piedmont Regional Council passed a law which states: "... the Region, in the process of choosing computer programs to acquire, prefers free software and programs whose source code can be inspected by the licensee" (Article 6, paragraph 2).

This choice was welcomed with enthusiasm by Free Software supporters and civil society, while the Presidency of the Italian Council of Minister contested this law, by referring to the Constitutional Court in order to declare it unlawful.

On March the 23rd, 2010, the Court ruled that the preference for Free Software is legitimate and complies with the principle of freedom of competition.

The reasoning given by the Constitutional Court is interesting:

The Court points out: "It is not understandable how the the choice of a Public institution with regard to a feature, and not a product ... can be deemed as a breach of antitrust law”. Furthermore, the Court clarifies that “The concepts of Free Software and software whose code can be inspected do not refer to a particular technology, brand or product, but they rather express a legal feature".

As the Italian Associaation for Free Software notes:
In short, according to the Court, favoring Free Software does not infringe freedom of competition, since software freedom is a general legal feature, and not a technological aspect connected to a specific product or brand. This ruling demonstrates the weakness of the arguments of those who, until now, have opposed the adoption of rules aimed at promoting and favoring Free Software arguing that they conflict with the principle of "technological neutrality".

This is an important result, and not just for Italy: it establishes a line of reasoning that could be applied in other jurisdictions.

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Marco F. said...

That part of the Court decision is a positive one, but the law itself was weak and it's not the only italian regional law that may have problems (see link).

Glyn Moody said...

@Marco: thanks. I suppose we take what we can get...

Jose_X said...

Don't closed source companies have a right to carve out obscene profits from society?

Let me see. One group gives you the software product, presents possible services or not, and gives you in addition the blueprints for the product. This group is generally giving you a much better deal than the closed source group, who gives you similar software and possibly comparable services (or not) but who doesn't give you source code and charges you significantly extra for licensing.

It is a shame the closed source companies nowadays present such a horrible and uncompetitive offer to consumers. .. Yes, I know.. their obscene profits are at stake, so they must charge you much more for less. It's a good thing for them that the lock-in their closed source has created over the years is quite effective; otherwise, they would have been run out of business a while ago.

I suppose if they have little enough shame so as to make their almost insulting offer in the first place (relative to what the competition offers), then it takes only a little bit more gall to actually claim that it is the open source competition and not themselves (with their missing second sourcing) that should be inspected on antitrust grounds.

The day some of these closed source companies get run out of town could not come soon enough. [Though they can stay if they start releasing the full source code to their products (including the source to the build tools, of course).]


Anonymous said...

That 'reasoning' is one of the clearest (upon further clarification by the poster/author) I've ever seen - ... free software ... not referring to a tech, brand ... but a 'legal right'.


Peter said...

"programs whose source code can be inspected by the licensee"

This is not necessarily Free or Open Source software. If this was an adopted mandate by an organization or government, I would exploit this if I worked for a proprietary software company. Inspection is a step in the right direction, but it isn't freedom.

Glyn Moody said...

@Peter: IANAL, but it seems to me the open code bit is explanatory, not a definition. But it would be better to say what they mean, you're right...