May 15, 2003

California Open Source Law

In August 2002, a piece of legislation was proposed to require California to buy only open source software. The law was the brainchild of Walt Pennington, a San Diego lawyer. Unfortunately, the law might as well have been titled the "Use Linux. Not Windows Law"; it says little about the benefits of open data formats, and its essential argument is that proprietary software is evil, if you can inspect the source code all problems magically disappear, therefore the state of California should buy open source software. Most interestingly, it proposes no alternative to open source software; if it's not available to fulfill a particular function, evidently, the state of California must do without.

The text of the proposed bill is available here.

This law is about open source software, not free software, not surprising when Red Hat is helping promote it [8/14/02]. It appears to suffer from the fact that it is more market driven than philosophy driven, because it pays little attention to the benefit of open data formats. Tagged with the PR-friendly name "Digital Software Security Act", it does begin the preamble by stressing the need to "guarantee the succession and permanence of public software and data." However, it follows that with "it is necessary that the usability and maintenance of the software be independent of the goodwill of the suppliers, or on the monopoly conditions imposed by them." And just a bit later, "Proprietary software that can only be upgraded by the vendor creates an incentive for vendors to cease maintenance of older products for the purpose of forcing their customers to buy new products."

In other words, it comes across as essentially a bill of attainder against Microsoft. Data is at risk because your proprietary software vendor may charge too much for updates, provide you with software that is vulnerable to hackers, or grab your data and send it back to Redm--errr I mean wherever the proprietary software vendor happens to be headquartered.

The bill continues, "These goals necessitate that the encoding of data is not tied to a single provider. The use of standard and open formats in open source software gives a guarantee of this security and integrity access." Which is false, of course: just because data is stored in an open format does not mean it can't be hacked into or spied on. In any case, that's the last thing the law says about data formats; nowhere is it stated that documentation on formats have to be available, or that they have to be "standard" in any sense, beyond being a standard with one adherent, the program in question.

The law also briefly mentions cost, in the first sentence: "The State of California seeks to improve the security, interoperability and quality of its software while lowering the cost and invigorating competition among suppliers" but then drops that issue also so it can concentrate on slamming Microsoft.

The law was obviously written with the battle over Peru's law in mind. The preamble lists five things that the law does not do:

  • the law does not forbid the production of proprietary software
  • the law does not forbid the sale of proprietary software
  • the law does not specify which concrete software to use
  • the law does not dictate the supplier from whom software will be bought
  • the law does not limit the terms under which a software product can be licensed.

which are identical to five items listed in a letter written in defense of the Peru law.

The California law also takes the definition of "free software" in the Peruvian legislation and reproduces it verbatim as its definition of "open source software."

This proposal was a little too blatant to make much headway. One write proposed that it be called the "California Retaliatory Act Against Microsoft, Oracle and Other Companies That Are Way Too Big for Their Britches." Microsoft grumbled about it, and as far as I know it never obtained a sponsor in the Legislature and quietly went away. However, it could be viewed as the father of various open source bills that are making better headway in other states during the 2003 legislative session.

Posted by Adam Barr at May 15, 2003 12:29 PM