Proprietary software also has legal hurdles

Proprietary software could be as troubling as open source, says Australian report

Delegates to the Govis open source seminar had a chance to compare the government’s just-published Guide to Legal Issues in Using Open Source Software with its Australian equivalent.

Catalyst IT director Donald Christie says the most notable difference is that the Australians also cover the legal limitations imposed by using proprietary software.

These typically include limits on the numbers of users or processors allowed to use the software, on the number of copies that can be made internally, and, in the words of the report, “additional esoteric requirements such as stipulations that the user must not use the software to create and publish material disparaging the vendor.”

“But broadly [the Australian document] comes to similar conclusions to the New Zealand report,” Christie says.

Green MP and spokesman on ICT issues, Nandor Tanczos, has issues with the New Zealand report’s language, particularly its use of the word “infectious” as a way of describing open source software.

“Paricularly with software the term is used to relate more to viruses and attacks than to anything positive.”

Tanczos, a long-time advocate of open source software, is disappointed the report appears to be so slanted against open source. He says the Australian report is far more balanced in its approach.

“It spells out the problems with both open source and proprietary software and is far more comprehensive.” Tanczos says the language used in the Australian report is far more neutral and allows deparmental IT heads to make up their own minds.

“The [New Zealand] report takes the stance that departments should not use open source as the default unless third party developers insist on it. That’s not right.”

“We didn’t use the word ‘viral’,” said John Elwood, author of the New Zealand report, at Govis. “That was one term we deliberately avoided. ‘Infection’ was just the most convenient shorthand way of describing the way the terms of an open source licence could shift to a derived product which might include some commercial code that the developer wanted to keep confidential. No negative implication was intended.”

The State Service Commision and other influential bodies in government certainly do not wish to deter agencies from adopting the technology, says Edwin Bruce, manager for e-government projects at the SSC. On the contrary, they are trying to encourage adoption, and to fail to point out risk would not be serving that goal well.

The Australian chapter Understanding the Legal Context is one section of a broader-ranging guide to open source software for Australian government agencies.

The report considers many aspects that influence a business decision to use open or proprietary software, such as competitiveness and the availability of support and warranties. The New Zealand report touches more briefly on the question of warranties.

Both reports spell out the difference among various forms of open source licence.

They set out various scenarios, on the basis of how far the creator or first licensor wants to distribute the software; using it entirely in-house, distributing
to other agencies or distributing
beyond the government. Distributing as a closed source version (allowed only by certain licences, such as BSD) and licensing a proprietary package of its own alongside open-source modules.