Their open exuberance for Free Software is rooted in a fundamental belief that the basic guarantees of a democratic State to its citizens can only be fulfilled using Free Software. In the text of their bill, they argue that the only way to guarantee to citizens the right to permanent access of public information is by insisting upon the use of standard and open formats that are not tied to a sole provider. In particular, they reject the idea that the use and maintenance of software should depend on the good will of the provider or, even worse, on the monopolistic conditions imposed by a vendor. Systems, they argue, can only be guaranteed by the availability of the source code.

The congressmen, however, don't stop there in their argument for Open Source. They directly confront proprietary software over the issues of privacy and the protection of a citizen's digital identity. The bill states that "To guarantee national security it is vital to have systems that are devoid of elements that allow remote control or the transmission of non-desired information to third-parties." Therefore, they argue that software used by the state must have source code that "is freely accessible so that its inspection be allowed by the State, the citizens and a great number of freelance experts in the world."

The bill then calls for the Executive, Legislative and Judicial branches, as well as the autonomous regional or local decentralized organisms and the corporations where the State holds the majority of the shares, to use Free Software exclusively in their computer systems. The bill goes on to define Free Software as software whose license guarantees to the user without additional costs the following:
 

Steve Ballmer, Microsoft's outspoken CEO, however, has a much different take on this story. He recently defiantly declared that "Linux is a cancer that attaches itself in an intellectual property sense to everything it touches." 

Given that pronouncement from on high, there is no way that Microsoft's General Manager in Peru, Juan Alberto González, is going to let this legislation move through the Peruvian Congress without mounting a significant effort to kill the bill. So after a meeting with the legislators, a letter was drafted and sent to Congressman Nuñez, targeting Open Source software in typical Microsoft scripted manner.

In quick response, Congressman Nuñez fired back an eloquent letter in defense of Free Software. In the letter was a reference to Microsoft's loss of a suit filed against them by the original developers of SoftImage, which Microsoft acquired and later sold to Avid. The developers charged Microsoft with software piracy and, after a long and protracted legal battle, they prevailed in a French court. Naturally, that point garnered a great deal of attention; however, the deeper arguments on behalf to Open Source and Free Software are quite profound and should be studied. What follows is a point counterpoint of the arguments of Señor González and Congressman Nuñez:

Señor González

Congressman Nuñez

The bill, by making the use of open source software compulsory, would establish discriminatory and non competitive practices in the contracting and purchasing by public bodies, violating the base principles of the "Law of State Contracting and Acquisitions" (Number 26850)

So, by compelling the State to favor a business model based entirely on open source, the bill would only discourage the local and international manufacturing companies, which are the ones which really undertake important expenditures, create a significant number of direct and indirect jobs, as well as contributing to the GNP, as opposed to a model of open source software which tends to have an ever weaker economic impact, since it mainly creates jobs in the service sector.

The Bill protects equality under the law, since no natural or legal person is excluded from the right of offering these goods to the State under the conditions defined in the Bill and without more limitations than those established by the Law of State Contracts and Purchasing. The Bill does not introduce any discrimination whatsoever, since it only establishes *how* the goods have to be provided (which is a state power) and not *who* has to provide them (which would effectively be discriminatory, if restrictions based on national origin, race religion, ideology, sexual preference etc. were imposed).

It should be obvious from the preceding that the Bill does not harm free private enterprise, since the latter can always choose under what conditions it will produce software; some of these will be acceptable to the State, and others will not be since they contradict the guarantee of the basic principles listed above. This free initiative is of course compatible with the freedom of industry and freedom of contract (in the limited form in which the State can exercise the latter). Any private subject can produce software under the conditions that the State requires, or can refrain from doing so. Nobody is forced to adopt a model of production, but if they wish to provide software to the State, they must provide the mechanisms which guarantee the basic principles, and which are those described in the Bill.

However, let us concern ourselves for a moment with your comment regarding "non-competitive ... practices." Of course, in defining any kind of purchase, the buyer sets conditions which relate to the proposed use of the good or service. From the start, this excludes certain manufacturers from the possibility of competing, but does not exclude them "a priori" but rather based on a series of principles determined by the autonomous will of the purchaser, and so the process takes place in conformance with the law. And in the Bill it is established that no one is excluded from competing as far as he guarantees the fulfillment of the basic principles.

Furthermore, the Bill stimulates competition, since it tends to generate a supply of software with better conditions of usability, and to better existing work, in a model of continuous improvement.

The central aspect of competition is the chance to provide better choices to the consumer. Now, it is impossible to ignore the fact that marketing does not play a neutral role (since accepting the opposite would lead one to suppose that firms' expenses in marketing lack any sense), therefore a significant expense under this heading can influence the decisions of the purchaser. This influence of marketing is in large measure reduced by the bill that we are backing, since the choice within the framework proposed is based on the "technical merits" of the product and not on the effort put into commercialization by the producer. Competition is increased, since the smallest software producer can compete on equal terms with the most powerful corporations.

It is necessary to stress that there is no position more anti-competitive than that of the big software producers, which frequently abuse their dominant position. In innumerable cases they propose as a solution to problems raised by users: "update your software to the new version" (at the user's expense, naturally). Furthermore, it is common to find arbitrary cessation of technical help for products, which, in the provider's judgment alone, are "old." To receive any kind of technical assistance, the user finds himself forced to migrate to new versions (with non-trivial costs, especially as changes in hardware platform are often involved). And as the whole infrastructure is based on proprietary data formats, the user stays "trapped" in the need to continue using products from the same supplier, or the need to make a huge effort to change to another environment.

 It is wrong to think that Open Source Software is free of charge. Research by the Gartner Group (an important investigator of the technological market recognized at world level) has shown that the cost of purchase of software (operating system and applications) is only 8% of the total cost which firms and institutions take on for a rational and truely beneficial use of the technology. The other 92% consists of: installation costs, enabling, support, maintenance, administration, and down-time.

This contradiction, regarding the relative weight of services in the context of software use. alone would invalidate your position [of the bill only discouraging local and international manufacturing companies, which really undertake important expenditures, create a significant number of direct and indirect jobs, and contribute to the GNP]. The service model, adopted by a large number of companies in the software industry, is much larger in economic terms, and with a tendency to increase, than the licensing of programs.

Nonetheless, allow me to point out that your conclusion [Open Source software is not free] is logically false. Even if according to Gartner Group the cost of software is on average only 8% of the total cost of use, this does not in any way deny the existence of software which is free of charge, that is, with a licensing cost of zero.

In addition, a reading of your opinion would lead to the conclusion that the State market is crucial and essential for the proprietary software industry, to such a point that the choice made by the State in this bill would completely eliminate the market for these firms. If that is true, we can deduce that the State must be subsidizing the proprietary software industry. In the unlikely event that this were true, the State would have the right to apply the subsidies in the area it considered of greatest social value; it is undeniable, in this improbable hypothesis, that if the State decided to subsidize software, it would have to do so choosing the free over the proprietary, considering its social effect and the rational use of taxpayers money.

In respect to the jobs generated by proprietary software in countries like ours, these mainly concern technical tasks of little aggregate value. At the local level, the technicians who provide support for proprietary software produced by transnational companies do not have the possibility of fixing bugs, not necessarily for lack of technical capability or of talent, but because they do not have access to the source code to fix it. With free software one creates more technically qualified employment and a framework of free competence where success is only tied to the ability to offer good technical support and quality of service, one stimulates the market, and one increases the shared fund of knowledge, opening up alternatives to generate services of greater total value and a higher quality level, to the benefit of all involved: producers, service organizations, and consumers.

It is a common phenomenon in developing countries that local software industries obtain the majority of their takings in the service sector, or in the creation of "ad hoc" software. Therefore, any negative impact that the application of the Bill might have in this sector will be more than compensated by a growth in demand for services (as long as these are carried out to high quality standards).

The bill imposes the use of open source software without considering the dangers that this can bring from the point of view of security, guarantee, and possible violation of the intellectual property rights of third parties.

The majority of open source code does not offer adequate levels of service nor the guarantee from recognized manufacturers of high productivity on the part of the users, which has led various public organizations to retract their decision to go with an open source software solution and to use commercial software in its place.

Alluding in an abstract way to "the dangers this can bring", without specifically mentioning a single one of these supposed dangers, shows at the least some lack of knowledge of the topic. So, allow me to enlighten you on these points.

On Security:

Relative to the security of the software, it is well known that all software (whether proprietary or free) contains errors or "bugs" (in programmers' slang). But it is also well known that the bugs in free software are fewer, and are fixed much more quickly, than in proprietary software. It is not in vain that numerous public bodies responsible for the IT security of state systems in developed countries require the use of free software for the same conditions of security and efficiency.

What is impossible to prove is that proprietary software is more secure than free, without the public and open inspection of the scientific community and users in general. This demonstration is impossible because the model of proprietary software itself prevents this analysis, so that any guarantee of security is based only on promises of good intentions (biased, by any reckoning) made by the producer itself, or its contractors. It should be remembered that in many cases, the licensing conditions include Non-Disclosure clauses, which prevent the user from publicly revealing security flaws found in the licensed proprietary product.

In respect of the guarantee:

As you know perfectly well, or could find out by reading the "End User License Agreement" of the products you license, in the great majority of cases guarantees are limited to replacement of the storage medium in case of defects. In no case is compensation given for direct or indirect damages, loss of profits, etc... If as a result of a security bug in one of your products, an attacker managed to compromise crucial State systems, what guarantees, reparations and compensation would your company make in accordance with your licensing conditions? The guarantees of proprietary software, inasmuch as programs are delivered "AS IS", that is, in the state in which they are, with no additional responsibility of the provider in respect of function, in no way differ from those normal with free software.

On Intellectual Property:

Questions of intellectual property fall outside the scope of this bill, since they are covered by specific other laws. The model of free software in no way implies ignorance of these laws, and in fact the great majority of free software is covered by copyright. In reality, the inclusion of this question in your observations shows your confusion in respect of the legal framework in which free software is developed. The inclusion of the intellectual property of others in works claimed as one's own is not a practice that has been noted in the free software community; whereas, unfortunately, it has been in the area of proprietary software. As an example, the condemnation by the Commercial Court of Nanterre, France, on 27th September 2001 of Microsoft Corp. to a penalty of 3 million francs in damages and interest, for violation of intellectual property (piracy, to use the unfortunate term that your firm commonly uses in its publicity).

The bill uses the concept of open source software incorrectly, since it does not necessarily imply that the software is free or of zero cost, and so arrives at mistaken conclusions regarding State savings, with no cost-benefit analysis to validate its position.

This observation is wrong; in principle, freedom and lack of cost are orthogonal concepts: there is software which is proprietary and charged for (for example, MS Office), software which is proprietary and free of charge (MS Internet Explorer), software which is free and charged for (RedHat, SuSE etc Gnu/Linux distributions), software which is free and not charged for (Apache, OpenOffice, Mozilla), and even software which can be licensed in a range of combinations (MySQL).

Certainly free software is not necessarily free of charge. And the text of the bill does not state that it has to be so, as you will have noted after reading it. The definitions included in the Bill state clearly *what* should be considered free software, at no point referring to freedom from charges. Although the possibility of savings in payments for proprietary software licenses are mentioned, the foundations of the bill clearly refer to the fundamental guarantees to be preserved and to the stimulus to local technological development. Given that a democratic State must support these principles, it has no other choice than to use software with publicly available source code, and to exchange information only in standard formats.

If the State does not use software with these characteristics, it will be weakening basic republican principles. Luckily, free software also implies lower total costs. Even given the hypothesis (easily disproved) that it was more expensive than proprietary software, the simple existence of an effective free software tool for a particular IT function would oblige the State to use it.