Open Source Software: Advocates Press for Government Consideration

Advocates of open source software, such as the popular Linux operating system, lately have pursued a new strategy to further accelerate its adoption. The tactics include a push for laws that require governments to at least consider open source software when making decisions on what software to use. Some have proposed laws that go as far as mandating the use of open source software by governments unless the only reasonable solution available is proprietary software.

While opponents protest that government regulations are merely “ affirmative action for open source,” supporters cite numerous rationales for laws that require governments to consider using open source software. Supporters note that, unlike purveyors of proprietary software, there is no entity that is actively and aggressively pushing the government to use open source software. The lack of a sustained marketing push makes it difficult for open source software to get on the radar screen of government officials, or for such officials to evaluate claims made by companies selling proprietary software. To level the playing field with proprietary software vendors’ salespeople and lobbyists, supporters of open source software say government officials should be required to document that they at least made a good-faith effort to consider open source software, and had defensible reasons for not adopting it.

Supporters also feel that open source software has certain advantages that make it a good fit for governmental use.

Cost
With historic budget deficits looming in many states, the initial cost of open source software itself is appealing. By replacing costly licenses for proprietary software with the freely licensed open source software, advocates say that governments could easily save money, even factoring in the possible increased training costs required to get its employees and network administrators up to speed using the new software.

Accessibility
By using proprietary software, governments often by default store public information in the proprietary format specifically tied to the software that created the data file, making public access of that information potentially difficult. Because the source code, and therefore the scheme for saving data, is publicly available in open source software, the public would not be required to use any costly proprietary software to access public information.

Customization
Because the source code for open source software is publicly available, a government would be free to customize the software code to fit its needs. Any such changes, by virtue of the open source model, could be lawfully incorporated by other entities seeking to customize their own software. In contrast, by relying on proprietary software, governments have no or very limited ability to “look under the hood” and tinker with the software to fix bugs or make the changes they require. They are almost totally reliant on the private software provider to provide such services, and must pay for that customization. Also, any changes or improvements that are made at the request of the government entity may not be shared with others, even though paid for by public money.

Local Job Creation
Rather than paying license and other service fees that will benefit corporations and employees in other jurisdictions, the use of open source software (because anyone is permitted to review and revise the underlying code) allows local professional organizations to provide services (via customization, integration, installation, etc.) around the software.

Government money spent on servicing open source software is more likely to benefit the government’s local constituents, and therefore returns a portion of the benefits to the local government through taxes.

While no states have yet adopted a law requiring governments to at least consider open source software, this year both Oregon’s and Texas’ legislators introduced bills supporting adoption of open source software. In both Oregon and Texas the bill never made it out of committee. In years past, California and Oklahoma also flirted with pro-open source software laws, and there are currently a number of grass-roots efforts underway in Iowa, Utah, Hawaii and Louisiana, as well as a number of municipalities, including New York City.

Foreign countries, which have less incentive to support and rely upon U.S.-based proprietary software companies, are farther along than our states in their efforts to mandate the use of open source software.

Efforts to pass open source software laws face stiff opposition from well-funded purveyors of proprietary software and their lobbyists. Sellers of proprietary software complain that no special laws are needed to obligate governments to evaluate or use open source software. They argue that government IT professionals are sophisticated, hear and read about open source software daily, and do not need to be hamstrung by legislation that forces them to waste valuable time and resources evaluating numerous open source programs for every possible governmental software project.

Proprietary software vendors also have responses for the other purported benefits of using open source software in government. For example, on the cost front, proprietary software vendors dispute the cost savings of open source software, arguing that a narrow focus on initial licensing costs ignores the longterm or “total cost of ownership” of software, and that the expenses of installation, training, and ongoing maintenance of open source software narrow or eliminate any price advantage that open source software may initially provide.

Both camps can cite studies showing that the long-term cost of their software is currently lower, so the conclusion on this point is fuzzy. The trend is less in doubt though: as more and more users and administrators become accustomed to open source software, the associated installation, training, and maintenance costs will decrease.

If laws such as the ones that have been proposed in Texas and Oregon are enacted in the future, look for other states to closely monitor their success, and the success of these and other governmental entities that adopt open source software. If a few states begin to more fully implement open source software without any calamitous problems, the perceived benefits in cost, accessibility, customization, and local job creation may be too much incentive for cashstrapped states to resist giving open source software a try.

Editor’s Note: Rick Statile is an attorney in the Raleigh, North Carolina office of Kilpatrick Stockton LLP, whose practice focuses on the challenges faced by emerging growth technology companies, such as intellectual property protection and licensing, venture capital financing and mergers and acquisitions.